This article summarises the most important developments anticipated in Belgian employment law in 2019.
By: Chris Engels, Sophie Maes and Inger Verhelst
Firm: Claeys & Engels
1. Single permit for foreign employees in Belgium
Belgium has transposed the EU ‘Single Permit’ Directive (2011/98/EU) under which foreign employees will only be required to obtain a single authorisation to work and reside in a member state. The federal act approving the Cooperation Agreement was published on 24 December 2018 and the single permit has entered into force. From now, a new single (but longer) application procedure for obtaining a single permit to work and reside in Belgium for a period longer than 90 days will have to be followed throughout Belgium.
Besides the new procedural rules that apply throughout Belgium, new conditions for employing foreign workers in Flanders have taken effect from 2019. The Flemish Region introduced a new economic migration model based on three separate profiles: highly qualified and special profiles, certain medium-skilled profiles (only for shortage professions listed in a dynamic shortage profession list) and profiles belonging to a residual category who are subject to a labour market test and for whom ‘special economic and social reasons’ must be established. These new rules only apply in Flanders and not in Brussels or Wallonia.
2. Soft ‘runways’ for older workers
A Royal Decree has extended the use of ‘soft runways’ (the term used for a reduction of the workload of older workers) in Belgian workplaces. The Decree aims to give individual employees the opportunity to join the system in the absence of a collective agreement at sectoral level. The decree entered into force on 1 January 2019.
3. New form of parental leave and extension of the duration of parental leave and adoption leave for long-term foster care
The Act of 2 September 2018 introduced a new form of parental leave at the rate of one-tenth. However, the specific details of this new form of performance reduction, as well as the conditions for granting it and the amount of the interruption allowance to which the employee will be entitled must still be determined by Royal Decree. In addition, the Act extends, as of 1 January 2019, the duration of parental leave and adoption leave for long-term foster care.
4. Sunday work
A law of 11 October 2018 extended the possibility for Sunday work in the future for retailers and hairdressing salons in tourist centres, seaside resorts and spas. The restriction whereby employees are only allowed to work 13 Sundays outside certain holiday periods will thus become a thing of the past. The only restriction is that each individual employee can work a maximum of 39 Sundays per year.
5. Mobility budget and adjustment of mobility allowance
Under the current system, the employee mobility allowance (cash for cars) is an all-or-nothing proposition, in particular on the question of whether to exchange or keep a company car. As a result, the Government has decided it is appropriate to offer an alternative to the mobility allowance for the company car, in the form of a mobility budget. However the proposal is currently stuck in Parliament and it is uncertain whether there will be any progress.
In the meantime, the government has issued a Royal Decree to ensure employers get information on employees having used the cash for car system.
6. Calculation method for the profit premium fine tuned
The Act containing Various Provisions on Employment was published on 21 December 2018. This Act modifies provisions relating to profit premiums. Profit premiums enable employers to distribute part of the profits of the financial year to employees. If you as an employer grant profit premiums, we advise you to check whether you can use the regime in a positive way and whether you take into account the listed periods of suspension as one of the main changes introduces by the Act is the possibility of calculating the profit premium based on the actual working periods of the employees in question. However, certain listed periods of suspension are considered to be working periods, the main ones being periods of yearly vacation, legal holidays, days of guaranteed pay in the event of incapacity for work, periods of maternity or paternity leave, periods of guaranteed income for (occupational) illness and (work) accidents, periods of adaption leave and periods of fostering leave.
7. CBA n° 90
On 1 January 2019, Collective Bargaining Agreement (CBA) No. 90/3 entered into force. This CBA modifies CBA No. 90 to enable the introduction of an ‘e-bonus’: in time, employers will be obliged to use electronic forms of acts of accession (as a first stage) and of collective bargaining agreements (as a second stage) to give employees a non-recurrent, result-related bonus.
8. Transposition of the Portability Directive: use of affiliation age or vesting periods within occupational pension schemes abolished
On 21 June 2018, the Chamber of Representatives approved the Belgian transposition of the Portability Directive on minimum pension standards for workers moving between member states. This act abolishes the use of affiliation ages (age limits for membership) or vesting periods (the time before which members are not entitled to their pension reserves) in occupational pension schemes from 1 January 2019.
9. Establishment of a free complementary pension for employees
The objective of this law is to allow employees to contribute to a complementary pension within the framework of their employment relationship. This provision will enter into force on 27 March 2019.
10. Social elections
In May 2020, social elections will once again be organised in thousands of companies. Through these elections, employees can choose their representatives in the committee for prevention and protection at work if the company employs at least 50 employees, and also in the works council when the company employs 100 or more employees on average,.
The organisation of the social elections is a process that requires numerous administrative steps by the employer, as well as decisions by it related to different core concepts (such as delimiting the technical business unit, determining the leading functions and the management functions, etc.). For a period of more than 150 days, the employer must follow a very strict procedure that will already start in December 2019.
11. Limosa declaration for self-employed workers limited to risk sectors as of 1 January 2019
As of 1 January 2019, the mandatory Limosa declaration for foreign self-employed workers who temporarily work in Belgium is limited to the following risk sectors: construction activities, activities in the meat industry and cleaning activities.
12. Reform of the companies’ code
The companies’ code is currently under review and a draft text has been produced. The texts were ready for discussion in plenary but on 18 December 2018 amendments were filed and the Council of State has to issue a new opinion. It is uncertain whether the law will be passed under the current government.