The system of gliding work-time schedules is applied already in a number of companies, but, in the absence of a legal framework, numerous problems arise. The legislator has now created such a legal framework by the statute "Workable and Flexible Work".
For a good understanding, gliding work-time schedules offer to the employees the possibility to determine themselves, within certain limits, the start and the end of the working day and the timing of the breaks.
This form of flexibility requires of course certain measures to exclude abuses and to safeguard the rights of both parties – employers as well as employees. A number of adaptations of existing legislation were therefore required.
1. How to instal gliding work-time schedules?
Gliding work-time schedules can be installed either by way of collective labour agreement or by way of the work regulations. In this collective agreement or, as the case may be, the work regulations at least the following items must be included:
the average weekly working time, which must be respected in the course of a given period, the reference period; this reference period counts in principle three months; the collective labour agreement or the work regulations may extend that reference period up to one year;
the hours of compulsory presence in the enterprise (the "fix part");
the variable periods (the "gliding part"), within which the worker himself may determine the time of arrival, departure and breaks, it being understood that the daily working time may not exceed 9 hours;
the number of hours of work which can be performed above or below the limit of the average weekly working time applicable within the company, it being understood that the weekly working time may not exceed the limit of 45 hours;
the number of hours, which have been performed at the end of the reference period on top of or below the number of hours applicable in accordance with the average weekly working time and which at the end of the reference period may be transferred to the following reference period; in principle, this number is fixed at 12 hours; this number may be increased by collective labour agreement.
In addition, the work regulations must include the specific sanctions, which apply in the case of a violation of the rules concerning the gliding work-time schedules.
In order to avoid all misunderstandings with respect to the gliding work-time schedules, also an attachment must be annexed to the work regulations, summarizing all rules applicable in connection with the gliding work-time schedules.
If gliding work-time schedules are installed by collective labour agreement, the work regulations must of course also be adapted accordingly. The employer can include these adaptations in the work regulations without following the procedure applicable in the case of modifying work regulations.
2. Can part-time appeal for gliding work-time schedules?
The system of gliding work-time schedules may also be applied for part-time workers with a fix work-time schedule.
However, part-time workers with a variable work-time schedule are excluded.
3. Recuperation when daily and weekly limits are exceeded in case of force majeure
The above-mentioned daily and weekly limits may be exceeded in the case of performance of overtime because of an extraordinary increase of the work, voluntary overtime and unforeseen necessity.
If a worker, at the end of a reference period, has worked a number hours on top of or below the average weekly working time as a result of force majeure, hindering him to work during a part of the reference period, then he can recuperate these hours during the three months following the end of the reference period. The maximum of 12 hours, referred to above, does not apply in this case.
To be noted as well: the recuperation must be made within three months following the end of the reference period, regardless of the duration of the reference period (which may vary from 3 to 12 months).
4. Time registration
Needless to say, it is extremely important – for the employee as well as for the employer – to have a clear overview at all times of the number of hours of work performed. Therefore the employer must provide for a system of time registration, keeping a record, for each employee individually, of the number of hours of work performed each day.
This must allow the employee to verify at all times the number of hours of work he has performed and how this number of hours compares to the number of hours on the basis of the average working time.
For the days of suspension of performance of the employment contract and for the days of rest in accordance with the statute on legal holidays, the average daily working time is taking into consideration.
These data must be kept during five years.
Needless to say, this time registration system is the most appropriate vehicle for the inspection services to verify compliance with the legislation.
5. Calculaton of the salary
For each pay period, the salary to be paid is calculated on the basis of the average weekly working time, regardless of the number of effectively performed hours of work during the pay period.
Of course, this may result in a situation where the salary paid to the employee for the reference period does not coincide with the total number of hours of work effectively performed during that reference period (that is, if the total number of hours of work effectively performed does not coincide with the total of number of hours of work to be performed in consideration of the average working time).
If the total number of hours, performed during a reference period, is inferior to the total number of hours to be performed on the basis of the average working time and the employee is not in a position anymore to make up that shortage at the end of the reference period, then the employer has the right to deduct that part of the excessive salary.
Turned round, if the total number of hours, performed during the reference period, exceeds the total number of hours to be performed on the basis of the average working time and the worker is not in a position anymore to recuperate that excess at the end of the reference period, then the employee is not entitled to compensation rest or extra salary, unless the extra hours have been performed at the request of the employer.
6. Maintain of excisting systems of gliding work-time schedules
The employers, who apply already a system of gliding work-time schedules, may maintain that system, even if it derogates from the statutory stipulations.
In order to do so, the existing system must be formalised, either by collective labour agreement, deposited at the clerk’s office of the General Directory Collective Labour Relations at the latest on 30 June 2017, or by the work regulations, which have to applicable at the latest on 30 June 2017 subject to compliance with the procedure applicable for modifying work regulations.