Belgium is the latest EU country to take a cold hard look at whether employment laws introduced in the sixties and seventies and little changed since are still meeting the needs of employees and employers in the modern world. A number of member states have found themselves forced to move away from protective and paternalistic employment regimes in order to maintain their competitiveness with other jurisdictions both within and outside Europe.
Draft legislation has been drawn up in Brussels (Belgian law Brussels, rather than EU Brussels, that is) which will make widespread changes to Belgian employment law and practice. We anticipate this will be put to Parliament in December 2016 and may be brought into force as the legislation on “Feasible and Manageable Work”  as soon as 1 January 2017.
While is possible there will be some further tweaks during that legislative process, we expect the Bill to survive more or less unscathed. If that is right then the changes will look like these:
- Belgium has among the lowest average working hours in the EU according to the OECD. To offset this, the existing 38 hour limit on each individual working week can now be assessed over a year instead of over a trimester. This is referred to in the draft Bill as “annualisation of working time” and would allow employees to work up to 9 hours per day or 45 per week at busier times of year so long as this is evened out by less work at other times.
- By agreement between employer and employee (i.e. not something which can either insist upon unilaterally), up to 100 hours voluntary overtime can be worked each year on top of the planned work schedules, with an absolute maximum of 11 hours per day and 50 hours per week. These 100 hours are paid at standard overtime rates. The employer is not going to be required to grant compensatory rest.
- Reflecting the almost universal use of technology to facilitate remote working, Belgium is introducing its first statutory provision for “occasional” tele-working arrangements by which employees would now be entitled to choose their work place in case of force majeure or unanticipated personal reasons (medical visits, works at home, etc.). This measure should be implemented at a company level through a CBA or amended work rules.
- To help upskill Belgium work forces, the new legislation will require employers to grant five paid days’ job-related training per year, pro-rated for part years or part-time employment.
- The Bill provides also for greater rights for employees to work flexible working hours, by which they decide when to start and end their working day, though still conditional on their chosen arrangements not unduly disrupting the business of the employer. This measure formalises a practice that already existed with many employers and was implicitly tolerated by the Social Inspection services. Existing systems of flexible working hours may continue, provided that they are accommodated within the work rules or a relevant CBA.
- One very imaginative provision is to allow small companies to share costs by the joint employment of staff whom neither needs on a full-time basis, subject however to approval from the Government.
- Part-time work will be simplified, in particular the administrative obligations regarding work-schedules
- Palliative and carer leave rights will be extended.
- Night work (between 8pm and 6am) in the e-commerce sector will be made possible.
Other measures can be adopted on a sector-wide basis by their incorporation into a suitable collective bargaining agreement:
- For specific sectors with extended production and development cycles, the calculation of the 38 hour weekly average can be spread over a number of years (capped at six) to assist employer flexibility (the so-called “plus-minus conto”). Provided that the annual average remains no more than 38 per week, peak time hours could in this case reach 10 per day or 48 per week.
- Agency work for an indefinite period of time is made possible, with a wage being paid by the temporary work agencies in between assignments (provided that there is an agreement in this respect in the agency work sector). This will allow temporary work agencies to build more permanent relationships with agency workers and also build up a pool of workers with high-demand skills profiles on the job market. However, when ending the agreement, a statutory indemnity will be due to the agency worker.
- Employees can be allowed to build up “career savings”, a banked period of paid time of which they can use in a lump as a sabbatical or career break when convenient to do so.
- Finally, the Bill allows the voluntary donating of leave days (other than statutory holidays) to a colleague with a severely ill or disabled child (< 21 years) if agreed on a sector level.
It remains to be seen whether in practice this new legislation will strike the right balance between allowing employees flexibility on the one hand and requiring it of them on the other. There may also be questions of whether these provisions go far enough to reflect the working patterns of 2017 and beyond. Nonetheless, they certainly represent a gallant attempt, by far the biggest changes in Belgian employment law since the reform of the dismissal rules in 2014. We will report on further developments with the “Feasible and Manageable Work” legislation on this blog.