[updated version of an article initially published on 15 November 2022]
2022 brings a warm autumn in terms of HR law with (1) the labour deal, (2) new legislation on transparent and predictable working conditions, (3) new legislation on the work-life balance for parents and carers, and (4) changes to reintegration processes for sick employees and the termination of employment contracts on grounds of medical force majeure.
In a series of four Legal Eubdates, you will read what impact these measures could have on your HR policy.
We start with “the labour deal”. After the federal government reached agreement on a package of labour market measures in February, the Act of 3 October 2022 containing various labour provisions was published in the Belgian Official Gazette on 10 November 2022. This Act aims to further modernise Belgian labour law (with a focus on flexibility and new trends) and achieve an 80% employment rate by 2030.
1. Measures for more flexibility and predictability
1.1 The four-day week
As an employer, you have the option to let your employees perform the weekly working time over four days. This measure does not entail a reduction in working time, but an increase in the number of hours to be worked per day, so that the weekly working time is performed over four days instead of the traditional five. You are not obliged to introduce the four-day week in your company.
The conditions are as follows:
- If you want to enable the four-day week system, you must include the framework for this in the labour regulations.
- The employee must request this regime in writing. You can refuse, but you must give reasons for your refusal in writing within a month of the request. The employee must not suffer any adverse treatment, such as dismissal, as a result of the request.
- You must enter into a written agreement with the employee which specifies the schedule and the start and end date of the system. The duration is limited to six months but is renewable.
- You must keep the request and agreement in the place where the labour regulations can be consulted for five years after the end of the period to which they relate.
- The limits of the daily working time are set at 9.5 hours (to be provided for in the labour regulations), with the possibility of an extension to 10 hours per day if provided by a collective bargaining agreement.
- The employee may not perform voluntary overtime on the fifth day.
This measure will enter into force on 20 November 2022.
1.2 The alternating working week
Through this measure, a full-time employee can work more hours one week (up to nine hours per day and 45 hours per week) and compensate for these additional hours by working fewer hours the next week to comply with the normal weekly working hours averaged over two consecutive weeks (14 daily work schedules in a fixed order).
For the months of July to September, or in the case of an unforeseen event, the cycle can be extended to four weeks. Employees in an alternating week regime can only perform voluntary overtime in the weeks where the weekly working hours exceed the normal weekly working hours. The employee can unilaterally stop the alternating week regime, provided he/she gives the employer two weeks’ notice.
Otherwise, the same conditions apply as for the four-day week.
This measure enters into force on 20 November 2022.
1.3 Notification of variable part-time working schedules
From now on, you must give employees seven (instead of five) working days’ notice of their variable part-time working schedules. If you have variable part-time working schedules in your company, you will have to amend this deadline in your labour regulations within nine months counting from 20 November 2022 (no later than 20 August 2023).
A collective bargaining agreement declared generally binding will still be able to reduce this minimum period to three working days instead of one working day. Existing sectoral collective bargaining agreements will cease to have effect from 1 January 2023 if they stipulate a shorter deadline. In that case, the deadline will be seven working days. Note that specific exceptions exist for certain joint committees (joint committees 110, 121, 145 and 302).
2. Measures for more training
2.1 Training plan
If you employ 20 or more employees, you will have to draw up an annual training plan. This should include an overview of the training courses and the staff categories, with specific attention to older employees and disabled employees, among others. The plan must be drawn up annually by 31 March at the latest and submitted to the works council, or in its absence the trade union delegation, or in its absence the employees. This measure will take effect retroactively from 1 September 2022.
2.2 Training right and days
If you employ 20 or more employees, you will have to guarantee a minimum number of training days for each (full-time) employee, namely:
- from 2023: at least four training days;
- from 2024: at least five training days.
Specific rules apply to part-time work and incomplete calendar years.
The individual training right is introduced through a sectoral collective bargaining agreement or, in its absence, through an individual training account. Even if no sectoral collective bargaining agreement is concluded and the employee does not have a training account, the employee is entitled to the specified number of training days. If the employee does not use up his/her training credit, it is carried over to the following year at the end of the year. Specific rules apply in case of termination of the employment agreement.
When training is received outside the work schedule, those hours entitle the employee to the payment of normal wages (no overtime).
Companies with 10 or more and fewer than 20 employees must guarantee one training day per year (for a full-time employee who has been employed for a full year). In any case, these companies determine annually before 30 September the number of training days to which employees are entitled. Otherwise, the rules as explained above apply.
Companies with fewer than 10 employees are exempt from the above rules.
These amendments will enter into force on 10 November 2022
3. Introduction of a right to disconnection
If you employ 20 or more employees, you must introduce a right of disconnection via a collective bargaining agreement or the labour regulations. You will have to stipulate at least the following details:
- the practical arrangements for the right to disconnection;
- guidelines for the use of digital tools in a way that safeguards the employee’s rest periods, leave, private life and family life; and
- training and awareness-raising actions for employees and managers regarding the wise use of digital tools and the risks associated with over-connection.
The right to disconnect applies from 20 November 2022. A copy of the collective bargaining agreement or labour regulations must be filed with the Federal Public Service for Employment, Labour and Social Dialogue by 1 January 2023 at the latest. The FPS for Employment announced in a press release on 25 November 2022 that the deadline for filing the collective labour agreement or providing a copy of the work regulations would be postponed by three months to 1 April 2023 (https://emploi.belgique.be/fr/actualites/report-de-trois-mois-dans-la-pratique-pour-se-mettre-daccord-sur-le-droit-la-deconnexion). You therefore have until then to negotiate the details of the right to disconnection.
If a collective bargaining agreement on the arrangements is concluded within the National Labour Council or at sectoral level, the obligation to conclude a collective bargaining agreement or to amend the labour regulations at company level will lapse.
4. Measures for an "activating" dismissal law
4.1 The transition path
When the employer dismisses an employee with notice to be served, the employer can offer the employee a transition path or the employee can ask the employer to offer a transition path. This is done by “loaning” the employee to another company (“user”) through the intervention of an employment agency or a regional public employment service.
In this case, you must conclude an agreement with the employee, the user and the employment agency or regional public employment service on the conditions and duration of the loan (maximum equal to the duration of the notice period). During the loaning period, the employer pays the employee the wage applicable at the user for the job he/she performs there, or the current wage for the job at the employer itself if it exceeds the wage at the user. The wage cost is passed on in full or in part to the user, depending on the arrangements made.
If the path is completed, at the end of the loaning period the user must employ the employee under an employment agreement of indefinite duration. If the user does not do so, it must pay compensation (equal to half the term of the transition path) to the employee.
It is worth noting that the employee will keep his/her full seniority for the right to time credit and a career break. In case of dismissal, the seniority he/she accrued during the transition path will be taken into account for calculating the notice period/remuneration.
This measure enters into force on 20 November 2022
4.2 Employability-promoting measures
Employees with a notice period of at least 30 weeks will, in addition to the right to outplacement, have access to additional measures such as training, coaching and additional outplacement. These measures will be financed by employer contributions due on the notice period or compensation (with a maximum of 1/3 of the period or compensation, from which four weeks of outplacement are deducted).
The severance package for these workers, in addition to the right to outplacement, will therefore consist of two parts:
- a notice period amounting to two-thirds of notice with a minimum of 26 weeks, or compensation corresponding either to the duration of the notice period of this first part or to the remaining part of that period;
- a notice period/compensation equal to the remainder of the notice period or compensation.
These measures will be financed by employer contributions due on the second part of the notice period or compensation.
In case of dismissal, the employee is entitled to be absent from work – with pay – from the start of the notice period for employability-promoting measures. In case of dismissal with payment of compensation in lieu of notice, the employee must remain available to follow employability-promoting measures.
In both cases, this applies to the extent equivalent to the amount of the employer’s contributions on the notice pay or the term of the second part.
This measure applies to dismissals as from 1 January 2023.
5. Measures for e-commerce
5.1 Experiments with night work (8 pm – midnight)
Companies within which night work is allowed will be able to set up a one-off 18-month experiment for night work between 8 pm and midnight, in which employees can participate voluntarily. The consent of trade unions is not required, but a strict procedure must be followed to enable the experiment, involving the works council, or, in its absence, the committee for prevention and protection at work, or, in its absence, the trade union delegation, or, in its absence, the employees themselves.
This measure enters into force on 20 November 2022.
5.2 Introduction of night work
A collective bargaining agreement or the labour regulations may introduce night work between 8 pm and midnight for e-commerce activities.
This measure also enters into force on 20 November 2022.
6. Measures for platform workers
The Labour Relations Act adds a list of eight criteria to determine whether there is a refutable presumption of an employment relationship between the platform and the platform worker.
This measure will enter into force on 1 January 2023.
There will also be a new obligation for a platform to take out work accident insurance for self-employed platform workers. A royal decree will determine the date of entry into force for this obligation.
7. Measures to increase diversity
The Federal Public Service for Employment, Labour and Social Dialogue will map out diversity within the different sectors on the basis of sectoral documents. These documents will analyse diversity based on the various criteria protected by anti-discrimination legislation. Joint committees will then have to prepare a report on the sectoral documents. If that report does not offer an explanation for the differences found within companies in the sector, the joint committees will have to draw up an action plan to eliminate these differences. So it is best to put diversity & inclusion (higher) on your HR agenda.
