The Workable and Flexible Work Act of 5 March 2017 aims to modernise employment law and make it more flexible. The Act consists of two parts: a "shelf" of measures that will immediately be applicable and a "menu" which can be activated by sectors or companies. Here is an overview of the measures which are immediately applicable within your company regarding working time, occasional teleworking and training.
In the pipeline for several months, the Workable and Flexible Work Act aims to modernise employment law and make it more flexible. The Act consists of two parts: a "shelf" of measures that will immediately be applicable and a "menu" which can be activated by sectors or companies (see Eubelius Spotlight September 2016). The Act entered into force retroactively on 1 February 2017 (with exceptions for some measures). This article gives an overview of the measures which are immediately applicable within your company regarding working time, occasional teleworking and training. The "menu" measures (including simplification of part-time employment, flexible working hours, reform of the system of groups of employers) will be explained in a future article.
Working time
Rules on working time are modified as follows:
Regime of "limited flexibility"
The rules on "limited flexibility" (article 20bis of the Labour Act of 16 March 1971) continue to exist, but the reference period for measuring the weekly work time schedule is now set at one calendar year or another period of 12 consecutive months. Before, the reference period was set at three months and could be extended up to 12 months.
Limited flexibility may be introduced by collective labour agreements or work regulations. It is important to check the sectoral rules, if any. The introduction procedure has been simplified.
Collective labour agreements setting shorter reference periods which have been filed with the registry of the Directorate General for Collective Labour Relations of the Federal Public Service Employment, Labour and Social Dialogue before 1 February 2017 remain in force as long as they are not modified. The same applies to provisions added to the work regulations before 31 January 2017.
Voluntary overtime
If the employer so wishes, he may invite the employees to perform voluntary overtime in the course of a calendar year up to a maximum of 100 hours. A collective labour agreement declared generally binding by royal decree can increase this figure up to 360 hours in the course of a calendar year.
The working time with voluntary overtime may not exceed 11 hours per day and 50 hours per week.
The employer and the employee must sign an individual agreement before voluntary overtime is worked. This individual agreement needs to be renewed every 6 months. A sectoral collective labour agreement can set other rules for the individual agreement.
Voluntary overtime will be paid taking into account the wage and the surcharge for overtime, without granting rest in compensation.
Limitation of working time above the normal weekly schedule
The internal limit of working time above the normal weekly work time schedule without rest in compensation being granted is increased to 143 hours during the applicable reference period. The first 25 hours of voluntary overtime are not included for the calculation of the internal limit of 143 hours. A collective labour agreement declared generally binding by royal decree can increase this total of 143 hours and the number of hours of voluntary overtime that are not included in the calculation.
Occasional teleworking
What?
"Regular and non-incidental" teleworking was already covered by CLA no. 85. The Workable and Flexible Work Act now introduces a legal framework for occasional teleworking, which is teleworking that is not "regular and non- incidental".
Occasional teleworking is only possible in case of force majeur (e.g. an unexpected train strike or even a strike within the company) or for personal reasons (e.g. a dental appointment) which prevent the employee from working at the employer's premises.
For which employees?
Employees have already been able to ask for occasional teleworking since 1 February 2017. However, this is only possible for employees whose function and/or activity is compatible with occasional teleworking. We recommend that it should be clearly stated which functions and/or activities come into play within your company (see below).
Procedure
The employee must request occasional teleworking in advance, within a reasonable time and in a reasoned manner.
The employer may refuse to accept occasional teleworking. The refusal should be in writing (letter or e-mail) and must be communicated as soon as possible. It must include the reasons for the refusal (e.g. a meeting that the employee must attend, abuse of occasional teleworking). We recommend that approval of occasional teleworking should also be in written form.
Rights and duties
Occasional teleworking can take place at the employee's residence or in any other place chosen by the employee.
The occasional teleworker must organise his work himself within the working time that applies in the company. This means that the employee must work for the number of hours stated in his work time schedule, without having to respect the work time schedule in a strict manner.
The employer and the employee must agree on the specifics of occasional teleworking, and in particular on:
- any necessary equipment or technical support that may be provided by the employer;
- the possible availability of the employee during teleworking; and
- any reimbursement to be paid by the employer to cover the costs of occasional teleworking.
We strongly recommend that these individual agreements should be in written form (a document signed by both parties, an exchange of e-mails, etc.). A standard document with minimum details to be agreed will prove useful.
Company policy
We recommend that a clear framework should be established for exercising the right to occasional teleworking within the company. This is possible in the work regulations, in a collective labour agreement or in the company policy. This framework should at least include:
- the compatible functions/activities within the company;
- the procedure to apply for and approve occasional teleworking;
- any necessary equipment or technical support that may be provided by the employer;
- the possible availability of the employee; and
- any reimbursement to be paid by the employer to cover the costs of occasional teleworking.
Training
Previously, 1.9% of the combined salary cost had to be invested in the training of employees, with a special contribution of 0.05% for employers whose sector did not contribute enough to the employees' training. The Constitutional Court ruled that this situation was an infringement on the principles of equality and non-discrimination.
As a result, the Workable and Flexible Work Act set a new cross-sectoral objective of five training days per year and per full-time equivalent. This objective only applies to companies with more than 20 employees. For companies with between 10 and 20 employees, a derogation regime will be set by royal decree. Companies employing fewer than 10 workers are exempt from the training obligation.
This objective is implemented by a cascade system:
- The five days objective must be realised by a collective labour agreement within a joint committee, providing for at least two training days per year and per full-time equivalent and for a growth path enabling the five days objective to be reached. For example, Joint Committees 207 and 226 have already adopted collective labour agreements on training.
- If no collective labour agreement is concluded, each worker will have an individual training account, entitling him to two training days per year and per full-time equivalent and also providing for a growth path. The manner in which this individual training account is to be calculated will be defined by royal decree.
- As long as no collective labour agreement has been adopted in the joint committee and the individual training account has not been activated, the training obligation remains limited to two training days per year and per full-time equivalent from 1 January 2017 onwards. The employee can follow the training during his normal work time schedule or outside it. If the training is not followed within the normal work time schedule, the hours during which the employee follows the training give the right to payment of the normal wage without entitlement to surcharge for overtime.
It is therefore important to check which agreements on this topic have been concluded in the joint committee to which your company belongs.
Conclusion
These measures have already been in force since 1 February 2017. Hence, you should not wait too long to assess the impact of the measures within your company and to establish a new policy. It is also important to check the decisions taken within your joint committee.