Does the lack of an entity in Belgium prevent the application of CBA No. 85 on telework?
Even though the difference is small, it is necessary to make a distinction: should an individual regularly working from home be considered a homeworker or a teleworker? As a reminder, regulations differ depending on which situation the individual is in, and hence, so do the obligations on the employer. The obligations in terms of occupational accidents and payment of home-working expenses come to mind.
The judgment of the Antwerp Labour Court dated 2 March 2016 allowed for an easy reply to this question when an employee was employed by a foreign employer without premises accessible to its employees in Belgium. What could be learnt from this judgment was mainly based on how the Court interpreted the definition of telework as provided for in Article 2 of CBA 85, namely "a way of organizing and/or performing work, using information technology in the context of an employment contract, in which work that could also have been performed at the employer’s premises, is carried out regularly and other than occasionally outside of these premises".
According to the Labour Court, the situation in which an employee working from home could not choose to use the facilities available at his/her employer’s premises since they were located outside of Belgium fell outside the scope of CBA No. 85. According to the Court indeed, this situation could, as a matter of fact, not comply with the condition that the work "could have been performed at the employer’s premises".
In accordance with this case-law, an employee working from home for a foreign company without premises in Belgium could only qualify as a homeworker within the meaning of the Act of 3 July 1978 and not as a teleworker.
However, in its judgment of 1 March 2018, the Brussels Labour Tribunal did not adhere to this analysis. This case involved an employee occupied in Belgium by a company based in the United Kingdom. In the absence of an entity in Belgium, it was contractually agreed that she would work from her Belgian residence.
In its judgment the Tribunal departed from the interpretation of the definition of a teleworker made by the Brussels Labour Court in its judgment 2 years earlier.
According to the Tribunal, the condition that telework needs to be a work that can be performed from the employer’s premises is intended merely to determine the nature of the tasks carried out by the employee, with a view to exclude from the scope of CBA No. 85 the so-called "mobile" employees (i.e., sales representatives): whose position and related tasks shall be executed outside of the employer’s premises in any event.
Hence, unlike the Antwerp Labour Court, the Brussels Labour Tribunal considers that the absence of an entity in Belgium shall not lead to preventing a foreign employer from applying CBA No. 85. Furthermore, this line of reasoning would unfairly deprive “teleworkers” of the protection provided by CBA No. 85, versus employees that are employed by an employer with an entity in Belgium and that are working in identical circumstances.
To this day, the question of the application of CBA No. 85 by a foreign employer without premises in Belgium remains unresolved by case-law. Therefore, a detailed analysis shall be conducted on a case by case basis.
Towards a general time registration obligation at the workplace?
At the European level, Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time lays down a number of minimum requirements at the European level in terms of working time, including the fact that the weekly working time shall not exceed 48 hours. It concerns minimum requirements at the European level, however, without prejudice to more stringent rules at the national level.
Nevertheless, this Directive does not contain any specific provisions on the verification of the number of hours worked.
In a dispute between trade unions and a bank in Spain, the trade unions pointed out that it was impossible to verify whether the limits as to the maximum number of hours to be worked had been complied with due to the fact that there was no legal requirement to register the number of hours worked. At the bank in question the number of hours worked was not registered. As a consequence, it was very hard for employees to claim extra salary for overtime worked, since it was very hard for them to prove how many overtime hours they had worked. According to the petitioner in the dispute at hand leading to the preliminary question, Spain had not correctly transposed Directive 2003/88 in this regard, causing this question to be referred to the Court of Justice for a preliminary ruling.
In its judgment dated 14 May 2019, the Court of Justice pointed out that, due to lack of a time registration system, employees could only demonstrate the number of hours worked using other means of proof. They could do so using testimonies, but in this regard the Court of Justice points out that this is not an efficient means of verifying the number of hours worked, as long as the employees are in the employer’s service, and hence, in a weaker position. Employees could refer to the hours in which they sent out e-mails, the number of hours logged on to the company computer network or to their mobile phone data. Again, the Court of Justice points out that these data do not necessarily reflect the total number of hours worked and therefore, these data are not necessarily decisive either.
Hence, the Court of Justice decides that the absence of systematic time registration infringes employee rights pursuant to Directive 2003/88. After all, without such a system it is very hard, if not impossible, both for the employees concerned and the national inspection services to verify whether the maximum working time limits pursuant to this Directive are being complied with. Therefore, according to the Court of Justice, each member state shall ensure an "objective, reliable and accessible system enabling the duration of time worked each day by each worker to be measured" is available.
However, the Court of Justice does not add how this system should work in practice. In this respect it remains to be seen how Belgian employment law will be amended. As a matter of fact, at this point, under Belgian law, there is only an obligation to register the number of hours worked in a few specific cases, for example in case of flexitime.
According to the Court of Justice, in order to verify compliance with the maximum working time, a general obligation on the use of a time registration system shall be introduced.