Since 1 January 2008, it has been possible for employers in Belgium to introduce a collective bonus plan eligible for favourable tax and social security treatment (for more information, please see our previous newsletters of 24 June 2009 and 17 March 2010). Needless to say, the introduction of collective bonus plans has raised certain practical questions, and the social inspectorates are currently investigating several companies' plans. In this newsletter, we set out the key requirements which should be kept in mind when introducing a collective bonus plan and the main difficulties some employers have encountered when applying the new system.
Requirements
- The bonus must be collective. In other words, it must be granted to all employees of the company or group of companies or to all employees in a specific category. In the latter case, the category should not be selected on the basis of potentially discriminatory grounds;
- The bonus must be linked to the company’s results or to predefined collective objectives. These objectives, which should be measurable and clear, may not be linked to individual assessments or objectives or to an objective the realization of which is already certain at the time the bonus system is introduced;
- The reference period, i.e. the period to which the collective objectives relate, should be stated in the plan and must be at least 3 months;
- The plan should contain a follow-up method to check if and when the stated objectives are reached;
- The plan should provide for a dispute resolution mechanism to settle complaints concerning the evaluation of results and the attainment of objectives;
- The plan should also mention which bonuses or benefits can be granted, how they will be calculated, and the time and method of payment;
- Finally, it is of the utmost importance to mention the expiration date of the plan.
If all of the abovementioned requirements are met, the collective bonus plan will qualify for favourable tax and social security treatment.
Difficulties
Over the past two years, a number of recurring problems with respect to the application of collective bonus plans have arisen. Based on our experience and according to the competent authorities, the following issues are often problematic:
- reference to CBA No. 90: although not explicitly stated in the applicable rules, it is strongly recommended to expressly mention CBA No. 90 as the legal basis for the collective bonus plan; otherwise, it may not be clear to the authorities whether the company intends to introduce a true collective bonus system which qualifies for favourable tax and social security treatment. In this respect please note that the form attached to CBA No. 90 should be completed and submitted to the authorities along with the collective bonus plan;
- maternity leave: it is crucial to mention in the plan that any period of maternity leave is equivalent to a normal working period (even though this is expressly mentioned in the applicable statutory rules). However, the authorities prefer to see a mention to this effect in the collective bonus plan itself;
- anti-discrimination legislation: according to the anti-discrimination legislation, selecting a group of beneficiaries for a bonus based solely on the fact that all of the employees have an open-ended employment contract is discriminatory. This will also be the case when the relevant selection criterion is full-time employment;
- reference period: the collective bonus plan may apply with retroactive effect to the first third of the reference period to which it relates. For example, if the reference period commences on 1st January and ends on 31st December, the plan must be submitted before 30th April of that year. If the reference period commences on 1st July and ends on 31st December, the plan must be submitted before 31st August of that year. If not, the authorities will not consider the objectives stated in the plan to be uncertain and consequently the plan will not qualify for favourable tax and social security treatment;
- maximum bonus: for 2010, the maximum bonus per employee has been set at EUR 2,299. However, the National Social Security Office's management committee and the competent department of the Federal Public Service for Finance have agreed to apply for 2010 the 2009 amount (i.e. EUR 2,314) if the plan's targets are mainly met on the basis of performance in 2009.
- specific provisions at sector level: several joint committees have worked out in detail the application of collective bonus plans. Since specific rules (e.g. regarding seniority requirements) could apply, it is important to check these provisions before drafting a collective bonus plan.
- progress reports to the employees: the authorities encourage employers to regularly update their employees on progress being made to achieve the collective bonus plan's stated targets.
