The flexi-job regime was already introduced in the horeca (hotels, restaurants and pubs) sector by means of the Act of 16 November 2015 holding various provisions concerning social affairs. The system aimed to combat undeclared labour in the sector by offering a regime that can easily be reconciled with the high fluctuations in the demand for staff in this sector and that restricts the tax and social security costs in this labour intensive industry through a favourable tax and social security regime.
The trade unions considered that the regime of flexi-jobs was contrary to the principle of equality enshrined in the Constitution, due to the fact that (1) a considerable number of protective requirements under the working time regulations, for instance the duty to notify the applicable work schedules at least 5 working days in advance, do not apply to flexi-jobs, and (2) the lower social security contributions due on flexi-jobs would constitute unfair competition for "normal" workers. The trade union lodged a claim before the Constitutional Court, but in its judgement of 28 September 2017, the Constitutional Court rejected this claim.
Backed by this judgment, the government announced its intention to extend the system to a number of other industries where there is also a high flexibility in the demand of staff. Under the draft Programme Act that is currently pending in Parliament, the system would more precisely become possible within the following joint committees :
- The joint committee for the trade in food products (joint committee n° 119)
- The joint committee for independent retail stores (joint committee n° 201)
- The joint committee for white collar workers within companies in the food industry (joint committee n° 202)
- The joint committee for large retail stores (joint committee n° 311)
- The joint committee large stores (joint committee n° 312)
- The joint committee for hairdressers (joint committee n° 314)
- The joint committee for temp agency workers (joint committee n° 322), but only if the user of the temp agency worker pertains to one of the abovementioned joint committees
Flexi-jobs are only possible for workers already employed for at least 4/5 of a full-time job during the third quarter preceding the flexi-job quarter. It is however not possible to perform a flexi-job at an employer by whom the employee is already employed during that quarter for at least 4/5 by means of another kind of employment contract. For assessing this threshold, effectively worked time and only an exhaustively listed number of assimilated periods, for instance sick leave, are taken into account.
This is a continuous requirement, hence the employer of a flexi-job worker should not only verify the compliance with this condition at the moment the contract is signed, but each quarter. This is done automatically through the social security declaration for the flexi-job worker.
Under the Programme Act, retired people would also become able to perform flexi-jobs, provided they receive a retirement pension at the end of the second quarter preceding the quarter of the flexi-job employment.
For all other aspects, the Programme Act does not amend the flexi-job regime as it was already existing in the horeca-industry. Without being exhaustive, the most important characteristics of this regime are the following:
- The flexi-job employee receives a so-called 'flexi-salary' which consists of :
- A base remuneration (currently at least 9,18 EUR/h), but it is possible to agree upon a higher amount
- Additional compensation, premiums and benefits if these are granted by the employer
- The flexi-job worker also receives holiday pay on top of his salary (7,67 percent). There is thus only the obligation to grant ordinary holiday pay, and no mandatory equivalent of the double holiday pay. Given the flexibility inherent to the system, the holiday pay should be paid at the same moment as the remuneration the holiday pay is calculated upon.
- The flexi-salary of the employee is a net amount, exempted from normal social security contributions and taxes.
- The employer is however required to pay a special contribution equal to 25 percent of the remuneration. As the basic rates of social security contributions will decrease as of 2018, the main benefit of the system for the employer is not really this 25 percent rate, but rather the flexibility possible under the system and the fact it will logically be far easier to agree with the worker on a low remuneration if the worker knows it concerns a net amount.
- Before entering into a flexi-job, a framework agreement between the employer and flexi-job employee must be concluded providing in certain legally defined information and creating a framework in which the actual employment contract can be concluded. This agreement is a pure "on-call agreement", and does not need to specify the moment on which the flexi-job worker will work. This absolute flexibility works nevertheless in both directions, as the employer has no minimum number of hours work to be performed, but similarly, the worker in a flexi-job has no minimum number of proposed working hours to be accepted.
- The employment contract can be concluded for a definite period or a clearly defined work. The restrictions on the signature of consecutive fixed term employment contracts stipulated in the 1978 Act on Employment Contracts are nevertheless not applicable to flexi-jobs.
- The formal requirements in relation to variable part-time work schedules, notably the duty to inform the worker at least 5 working days in advance of the applicable work schedule, are not applicable to flexi-jobs.
- Also the beginning and the end of the work performances must be registered. Within the horeca-industry, this was has to be done through the mandatory official cash till. While the legislation allows using other time registration systems meeting the requirements stipulated by Royal Decree, a Royal Decree stipulating these requirements for companies outside the horeca-industry should still be promulgated. In case of variable working hours, less stringent conditions apply compared to a normal employment contract.
The new flexi-job rules normally enter into force on 1 January 2018.
The legal reforms discussed in this publication are not definitively approved by Parliament yet, and may be subject to change.