Pursuant to article 3, §3 of the Labour Code of 1971, employees in a leading position or a position of trust are excluded from the legal provisions on working time. Indeed, the employees concerned are not subject to the restrictions on working hours, night work or timetables applicable to other employees. In terms of overtime, case law does not provide an unambiguous answer to the question of whether or not extra hours worked by employees in a leading position or a position of trust must be paid. Some case law states that employees can never be assumed to work for ‘free’. Overtime must therefore be compensated at normal pay rates. Other case law excludes employees in a leading position or a position of trust from any entitlement to compensation for overtime, based on a literal interpretation of article 3, §3 of the Labour Code.
The Royal Decree of 10 February 1965 further sets out a non-exhaustive list of positions falling within the scope of ‘leading positions or positions of trust’, as referred to in article 3, § 3 of the Labour Code. It is, however, remarkable that the Royal Decree, which is more than 50 years old, has never been updated and adapted to the evolution of technologies and business organization. Positions such as horse keeper, shorthand typist and functions in mining companies are still included in the list. Moreover, case law seems to opt for a rather restrictive interpretation of the list, considering the fact that employees falling within the scope will be excluded from the protective measures generally granted to employees by the Labour Code.
A recent judgment of the Court of Cassation, dated 11 September 2017, concerned an employee entrusted with monitoring transactions relating to purchases and stocks for various European branches. The employees of the European branches were obliged to request permission from the employee concerned to place orders and thus to purchase materials. It must be noted that the employee concerned did not place any orders himself and the employees from the various branches could still waive the approval to place an order. Surprisingly, the Court of Cassation decided to exclude the employee concerned from the protective measures in the Labour Code by qualifying this position as being a leading position or a position of trust, in accordance with the outdated Royal Decree of 10 February 1965.