On 5 January 2017, the draft act on Feasible and Flexible Work (FFW) was filed in the Chamber. This draft act was approved on 23 February 2017. Most provisions enter into force on 1 February 2017.
In a previous e-zine, we provided you with an overview of the most important measures that might have an impact on your working-time arrangements and might ensure more flexibility within your company. In this e-zine, we discuss the other measures from the plan FFW.
Check what might be interesting for your company so that you can get on board in time.
1. Occasional telecommuting
The plan FFW introduces occasional telecommuting. This is telecommuting that is performed on an occasional and not on a regular basis. Occasional telecommuting will be possible for employees who are unable to work on company premises due to force majeure or personal reasons, and on condition that they perform a function and/or activity which is compatible with occasional telecommuting. Examples of force majeure are an unexpected railway strike or car breakdown. Personal reasons are, amongst other things, a doctor’s or dentist’s appointment that might be difficult outside working hours, completing administrative formalities where the presence of the person is required, a visit of a technician, and so on.
Employees who want to make use of occasional telecommuting must ask permission from the employer first and within a reasonable time, stating the reasons therefor. If the employer agrees, the employer and employee will have to agree upon the occasional telecommuting, and at least regarding:
- the possibility of providing the necessary equipment for occasional telecommuting and technical support by the employer;
- the possible accessibility of the employee during the occasional telecommuting;
- the possible reimbursement of costs related to occasional telecommuting by the employer.
If the employer does not agree to the employee’s request, for instance because the attendance of the employee is necessary to ensure the operation of the company at that time, the employer will have to inform the employee of the reasons in writing as soon as possible.
The framework in which occasional telecommuting can be requested, might (but does not have to) be defined in a collective bargaining agreement (CBA) or in the work rules. In this regard, the agreements between the employer and employee as mentioned above will be included, as well as a list of the company’s functions and/or activities that are compatible with occasional telecommuting, and the procedure which must be followed to ask for and allow occasional telecommuting.
The impact depends on the company (what is usual and to what extent functions and/or activities of the company allow occasional telecommuting).
- Draft or update standard documents / policies. (Do the standard documents / policies include agreements regarding (i) providing the necessary equipment, (ii) accessibility of the employee and (iii) reimbursement of costs?)
- If desired, implement the legal framework for occasional telecommuting in a company CBA or in the work rules.
2. Temporary work contracts for indefinite duration
To date, employment contracts for temporary agency work may only be concluded for a specific period of time, for clearly defined work, or to replace a permanent employee. The plan FFW makes it possible in future to conclude temporary work contracts for indefinite duration, so that a temp worker can be appointed within the framework of one temporary work contract for indefinite duration to one or more user’s undertakings.
For the avoidance of doubt, the conditions in which companies may call on temporary agency work are not modified. Hence, temporary agency work will only be possible for certain types of temporary work. Temporary agency work for an indefinite period of time will not be allowed.
Before agreements for an indefinite duration will be possible, certain aspects need to be established within the joint committee for temporary agency work. For instance, the plan FFW includes a minimum guaranteed hourly wage during the hours that the temp worker does not perform at a user’s undertaking. This amount needs to be determined in an industry-level CBA.
The relevance of a temporary work contract for indefinite duration is mainly located in the relationship between temporary employment agency and temp worker.
Await further developments.
3. Gifting conventional leave
An employee can gift conventional (not legal) leave to another employee of the company who has to take care of:
- a child under the age of 21
- who is affected by a serious illness or disability, or who has been the victim of a particularly serious accident
- and for whom a continuous presence and necessary care is essential.
Moreover, the employee needs to be a parent of the first-degree child and to live with them, or be the spouse of the child’s parent on the condition that he/she lives with the child and is responsible for the child’s day-to-day care. Additional leave granted by an individual employment contract or CBA as well as ADV days (reduction of working hours) are considered as conventional leave.
It is essential that the gift has to be done voluntarily, anonymously and without any advantage, and that the employer agrees. Anonymity is protected by processing the request through the employer. The employment contract of the employee who receives the leave will be suspended by paid leave during the period of absence.
In principle, the possibility to gift conventional leave needs to be introduced by an industry-level CBA. If not done within six months of the date of initiation at industry level, a CBA can be concluded with the trade union delegation at company level, or via the work rules in the case of absence of a trade union delegation.
The impact of this measure will depend on the industries (will they conclude a CBA or, at least, start negotiations?), the employers (will they agree to the gift?), and the employees themselves (do they want to request leave and gift leave?).
If desired, and in the absence of an industry-level CBA, introduce at company level.
4. Adjustment of leave schemes
4.1. Leave for palliative care ("palliative leave")
The adjustments to palliative leave can be summarized as follows:
After the entry into force of FFW
Temporary suspension of the employment contract for palliative care (total, 1/2nd, or 1/5th)
Temporary suspension of the employment contract for palliative care (total, 1/2nd, or 1/5th)
For 1 month, which may be extended by 1 month per patient
For 1 month, which may be extended twice by 1 month per patient
Take into account that employees have the possibility to extend their palliative leave by 1 additional month (maximum 3 instead of 2 months).
4.2. Time credit with appropriate justification
Although the plan FFW provides a number of provisions that change time credit with appropriate justification, these provisions are no longer relevant. Indeed, the social partners have concluded an agreement in this regard (CBA No. 103ter of 20 December 2016).
Time credit with appropriate justification has been adjusted because the entitlement to leave and the entitlement to benefits, defined in a separate legal source (CBA No. 103 for the entitlement to leave; Royal Decree of 12 December 2001 for the entitlement to benefits), were no longer in line:
- An entitlement to time credit without appropriate justification was still in force, but the entitlement to benefits was withdrawn as of 1 January 2015. From now on, the entitlement to leave will also be withdrawn, so that time credit without appropriate justification will be completely phased out.
- Regarding time credit for healthcare reasons, the Royal Decree of 12 December 2001 provided a longer entitlement to benefits for certain healthcare reasons (maximum 48 months) than the entitlement to leave (36 or 48 months depending on the objective). From now on, the entitlement to leave and the entitlement to benefits will be harmonized and raised to maximum 51 months.
CBA No. 103ter will enter into force as from the entry into force of the adjustments to the Royal Decree of 12 December 2001, and no later than 1 April 2017 (if not, the entitlement to leave and the entitlement to benefits are again not harmonized). Former rules remain applicable for requests and applications for renewal submitted before the date of entry into force).
To Do Take into account that employees have the possibility to take time off for healthcare reasons for a maximum of 51 months.5. Lifelong learning What?The plan FFW converts the goal of employers in the private sector to devote at least 1.9% of the industry-wide total payroll to employees’ training. From now on, this training goal will be expressed as a new goal of an average of 5 days of training per full-time equivalent (FTE) per year.
Employers are not obliged to reach this target immediately. As of 1 January 2017, it is obligatory to offer employees at least an average of 2 days of training per FTE per year (for instance, a company with 50 FTEs: 100 days of training with an equal distribution between all employees). In addition, a growth trajectory must be set, which systematically raises the number of days of training until the average of 5 days of training per FTE has been reached (without specific end date). The new training goal can be realized by entering or renewing a joint (sub-)committee’s CBA, or in the absence of a CBA, granting the days of training at the company level by an individual training account.
The industries have until 30 November 2017 to concretize the training goal for the first time. In the absence of days of training by a CBA or an individual training account, the employee will be entitled, as of 1 January 2017, to a supplementary scheme with an average of 2 days of training per FTE per year. In any event, certain aspects must be further developed.
The measures regarding lifelong learning are only applicable to employers in the private sector who employ 10 or more FTEs. However, a Royal Decree can derogate for employers who employ at least 10 and fewer than 20 FTEs.
Employers will have to follow their employees’ training more precisely.
Follow and comply with implementing legislation and, if applicable, industry-level CBAs. In the absence of an industry-level CBA, comply with the supplementary scheme (average of 2 days of training per FTE during 2017).
6. Employer grouping
An employer grouping is an association of several companies in an economic interest grouping or non-profit association, with the aim of fulfilling the collective staff needs of the companies (for instance, the absence of sufficient work or financial resources of the companies to engage employees on a full-time basis). The employer grouping will hire the employees and, subsequently, will put these employees at the disposal of the members of the association. In this way, the employer grouping is an exception to the prohibition against putting employees at the disposal of a user. The need for a prior authorization of the employer grouping by the Minister of Employment is an important requirement for this exception.
The plan FFW provides following adjustments to the employer grouping:
- Before granting an authorization, the Minister of Employment can obtain advice from the National Labour Council (NLC) (previously, this advice was mandatory);
- The Minister of Employment takes a decision within 40 days of receipt of the request, or within 100 days if the advice of the NLC was requested (previously, this time was 100 days in every case);
- The employer grouping needs to draw up internal rules (new);
- The employer grouping needs to provide an annual activity report to the Chairman of the Board of Directors of the Federal Public Service Employment, Labour and Social Dialogue (new);
- The employer grouping can employ no more than 50 employees, unless this threshold is increased by Royal Decree (previously, the number of employees was unlimited); and,
- Unless the approval is revoked in a case where the maximum number of employees is exceeded, the approval will be granted for an indefinite period of time (previously, the Minister of Employment freely determined the authorization’s duration).
The legislator wants to give more attention to the employer grouping by making the structure more attractive.
Check whether the employer grouping might be advantageous for your company.