The following article highlights the most important changes that Belgium has adopted this year in the area of employment law. Among others, these reforms include the possibility of a four-day work week, the right of employees to "disconnect", a new labour mandate for companies to draft "training plans", and the right of employees to negotiate flexible working conditions. Since these legislative changes will have a concrete impact on the way companies run their businesses, this overview is aimed at helping companies understand and master these reforms.
Four-day work week
Companies may introduce a work regime whereby employees can apply to work full-time over four days without any reduction in pay. Depending on the number of hours worked per week by the employees, the company can introduce this possibility through an amendment to work regulations or through the signing of a company collective bargaining agreement.
Employees can enter this system voluntarily. The employee must send the employer a written request, which the company may accept or refuse:
- If accepted by the company, the company must conclude an agreement with the employee. This agreement must contain a number of compulsory clauses. The employees will then be able to work full time on four days for a maximum period of six months (which is extendable).
- If refused, the company must give reasons for this decision.
Note also that employees who apply to work their full time over four days are protected against dismissal, and an employee who works full time on four days cannot perform voluntary overtime on days when they do not normally work.
This legislative change will enter into force on 20 November 2022.
Right to disconnect
All companies in the private sector with at least 20 employees will be obliged to establish a company policy on the right to disconnect in order to respect employee rest periods and holidays, and provide employees with greater balance between their professional and private lives.
Such a company policy must be adopted through a company collective bargaining agreement or through work rules, and at the least must provide for:
- the practical modalities for the application by the employee of his or her right to be unavailable outside the working hours;
- the guidelines for using digital tools in such a way that the employee’s rest periods, holidays, private and family life are guaranteed;
- training and awareness-raising activities for employees and managers on the prudent use of digital tools and the risks associated with excessive connection.
Employers are obliged to adopt this company policy by 1 January 2023 at the latest.
The labour deal provides that, in addition to the individual right to training, private companies with at least 20 employees must draw up an annual training plan.
Concretely, the law states that before 31 March of each year, the employer must provide employees with an overview of possible training courses and the target groups for these courses.
The employer is free to determine the training courses, but needs to pays special attention to workers with specific needs, in relation to their skills (e.g. risk groups, workers aged 50 or over, workers with disabilities and those in occupations in short supply). The labour deal also requires special attention to gender. Even though the employer has some freedom when drafting the training plan, these plans should at least include:
- a validity period of one year;
- an overview of all the possible training courses and the target groups for these courses within the company;
- formal and informal training referred to in the individual right to training and an explanation of how the plan contributes to the investment in the individual right to training of the employees.
Moreover, the employer must also respect social dialogue in the drawing up of the training plan through consultation with the works council or, in its absence, the union delegation.
This measure came into force on 1 September 2022. In concrete terms, the first training plan must be ready for discussion by March 2023. The works council or , if there is no works council, trade union delegation should decide on the draft plan by 15 March 2023 at the latest. If the company has neither a works council nor a trade union delegation, the employer should present the plan to employees by 15 March 2023.
The transition path allows dismissed employees to work for another employer (i.e. the employer-user) during their notice period. The use of this transition path is optional for both the employee and the initial employer. In case the parties agree on a transition path, the initial employer remains in charge of the payment of remuneration. The employer-user compensates part of this remuneration. In case the employee remains at the service of the employer-user until the end of the transition path, specific obligations will apply to the employer-user.
The conditions and duration of the transition path must be laid down in a document signed in advance by four parties: the employer, the employee, employer-user and the temporary employment agency or regional public employment service.
This legislative change will enter into force on 20 November 2022.
This measure aims at promoting the employability of dismissed employees entitled to a notice period or to an indemnity in lieu of notice of at least 30 weeks.
The notice period of the dismissed employees is divided in two parts. In case of termination subject to the performance of a notice period, the employee will have the right, as from the beginning of the notice period, to take time off work with continued remuneration and to follow the "employability measures" (e.g. coaching, trainings, etc.). In case of termination subject to the payment of an indemnity in lieu of notice, the employee must be available to follow these employability measures. Such employability measures will be financed by the employer’s social contributions due on one part of the notice period. Employability measures do not replace outplacement obligations.
This legislative change will enter into force on 1 January 2023. A Royal Decree will outline more precisely this measure.
Transposition of European directives 2019/1152 and 2019/1158
Collective bargaining agreement 161 introducing a right to request a flexible work arrangement
CBA 161 establishes the right for the employee with at least six months of seniority at the same employer to request a form of work with more predictable and certain working conditions. Such a request could entail, for example, a change of an employment contract for fixed duration to indefinite duration, a full-time work regime instead of part-time work regime, a fixed work schedule instead of a variable work schedule, etc.
The CBA specifies the additional conditions and also gives the employee, who is making such an application, protection against dismissal or actions with a negative impact by the employer. If this protection is violated, the employer must pay damages to the employee of up to six months’ remuneration.
CBA 161 entered into force on 1 October 2022 and leaves a lot of space for social dialogue at the company or sector level.
Collective bargaining agreement 162 concerning the right to request a form of employment with more predictable and secure working conditions
CBA 162 establishes a right for employees to request flexible working arrangements for care purposes. This is in line with the objective of increasing gender equality and boosting the participation of women in the labour market by making it easier for employees who are parents or informal caregivers to combine work and family.
More flexible working arrangements can take the form of remote working, a work schedule adjustment, a reduction of working hours, etc.
Like CBA 161, CBA 162 also gives the employee making such application protection against dismissal or actions with a negative impact by the employer with a possible sanction for the employer to pay damages of up to six months’ remuneration.
CBA 162 entered into force on 1 October 2022 and leaves a lot of space for social dialogue at the company or sector level.
Partial transposition of the European Directive 2019/1152 into Belgian law
On 10 November 2022, the Act of 7 October 2022 partially transposing EU Directive 2019/1152 entered into force in Belgium. As a result, work rules will need to be updated on specific administrative mentions aimed at better informing employees about the major collective aspects of their employment relationships.
This concerns, in particular, the following four provisions:
- the procedure to respect in case the employment contract is terminated and the potential actions that can be taken against dismissal (e.g. formal conditions and length of the notice period), or the reference to the legal or regulatory provisions in this matter;
- the reference to the CBAs and/or collective agreements concluded within the company applicable to the employees’ working conditions and the reference to the joint body for the CBAs concluded outside the company;
- the reference to the right to training offered by the employer or the reference to the legal and regulatory provisions (or CBA’s) in this matter;
- the social security body that collects social security contributions (i.e. ONSS/RSZ).
Whereas the first two provisions only need to be updated, the last two provisions must be included in the work rules. As a consequence, a consultation procedure within the works council or, in absence thereof, with the employees themselves, must be followed in order to include them in the work rules.
This legislative change entered into force on 10 November 2022.
Five days of unpaid leaves
On 10 November 2022, the Act of 7 October 2022 partially transposing the EU Directive 2019/1158 on work-life balance for parents and careers entered into force in Belgium. The Act grants five days of unpaid leaves to employees who must provide personal care or assistance to a family member or a person living in the same household requiring considerable care or assistance due to serious medical reasons. These five days are to be deducted from the ten days of unpaid leave for compelling reasons to which employees are entitled.
Employees who want to benefit from this extraordinary leave must give the employer prior notice, either orally or in writing. Employees must also provide the employer with a certificate issued by the doctor treating the family member or the member of the household during the calendar year in which the care leave is taken and in which it appears that the family member or member of the household requires considerable care or assistance for a serious illness.
Employees benefiting from this extraordinary leave are protected against dismissal from the moment of their request until one month after the extraordinary leave. In case of dismissal, employees may ask their employer to state the reasons for their dismissal in writing. If the dismissal is declared unlawful, the employer must pay the worker a lump sum equal to six months’ gross remuneration without prejudice to the compensation due in the event of termination of the employment contract.
This legislative change entered into force on 10 November 2022.
Law on various provisions relating to work incapacity
No medical certificate required for the first day of incapacity
An employee will no longer be required to produce a medical certificate for the first day of work incapacity. The law provides a safeguard: the employee can only use this possibility three times a year. The employee must, however, still immediately inform the employer of the address at which he is staying during the first day of work incapacity, unless this address is the usual residence known to the employer.
Therefore, every company will be obliged to adapt its work regulations regarding the provisions on periods of absence if it provides for deviating rules (which is often the case).
Companies with fewer than 50 employees on 1 January of the calendar year in which the incapacity occursmay, however, derogate from this new regulation, provided that the employers have explicitly provided for this in the work regulations.
This legislative change will enter into force 10 days after its publication in the Belgian Official Gazette.
EU Whistleblowing Directive
Implementation of the EU Whistleblowing Directive 2019/1937 into Belgian law
The EU Whistleblowing Directive 2019/1937 aims at setting minimal standards for better protection of individuals who witness and report in the professional context certain violations of EU law (e.g. social and tax fraud).
Depending on the number of employees in a company, employers will have to put in place internal reporting channels (that can be anonymous if certain conditions are met). The legislation provides for protection of whistleblowers against retaliation and for specific proceedings in case whistleblowers suffer retaliatory measures (e.g. dismissal, lack of promotion, etc.).
The EU Whistleblowing Directive 2019/1937 was to be transposed by members states by 17 December 2021. However, Belgium has not yet formally implemented this Directive into national law and a draft law is currently on the table.
Reform of the Civil Code
Impact of the reform of the Civil Code on employment law
Due to the Reform of the Civil Code, Saturdays will no longer be considered working days.
This legislative change will have a concrete impact on the notification of dismissals subject to the notice period. As a reminder, the notification of a dismissal by registered letter releases its full effects on the third day following the sending, and a notice period begins on the Monday following the week in which it was notified. In view of these two rules and the new regime inserted by the Civil Code, a registered letter notifying a dismissal will thus have to be sent on Tuesday at the latest (no longer on Wednesday) for the notice period to start on the following Monday.
This legislative change will enter into force on 1 January 2023. However, the National Labour Council issued on 16 November 2022 an advice in which it requests the federal authorities to introduce a derogation for employment law and social security law as regards the meaning of “working day”. In particular, the National Labour Council considers that Saturdays should continue to be considered as working days in order to ensure legal certainty and predictability; topic to be followed up!