Author: ibizz

On 1 February 2023 the subscription fees for the train (NMBS/SNCB) have been increased. In this newsletter, we would like to inform you of the impact of these increases for you as an employer.

We repeat in a nutshell the general principles that determine whether you, as an employer, are obliged to contribute to the commuting costs of your employees:

• For employees who come to work by public transport, the employer is obliged to pay a contribution as from the 1st kilometer. All employers are subject to a minimum contribution, laid down at the level of the National Labour Council (CNT/NAR). Within the National Labour Council, a collective bargaining agreement was concluded that determines the employer’s contribution based on lump sums. These amounts have remained unchanged since 1 July 2019.
• For employees who come to work by their own means of transport (car, bicycle…), it should be checked whether a contribution has been determined at sector level.

As you can read below, increases of the fares of the public transport companies do not affect every employer.

Train

As from 1 February 2023, the NMBS/SNCB increased the fee of the commuting train season tickets by 9.73%. Whether you, as an employer, have to contribute to this increase in fares, depends on the joint industrial committee (sector) to which your company belongs, and the collective labour agreements that were concluded in this joint industrial committee:

• Your sector does not stipulate anything about the contribution to commuting costs or refers to the general minimum regulation provided for by the National Labour Council –> your contribution does not increase, as the lump sums remained unchanged.
• Your sector provides for the employer’s contribution to be equal to a percentage of the actual rail fares –> your contribution will increase.
• You make use of a third-party payer agreement whereby you as an employer pay a contribution of 80% of the actual price of the train season ticket to the train company and the state pays the remaining 20% –> your contribution will increase.

Metro, tram, bus, waterbus

Does your employee travel to work by metro, tram, bus or waterbus? First of all, check whether your sector has stipulated anything for this reimbursement.

If your sector does not stipulate anything, the price increases will have an impact on your contribution to the commuting costs, depending on which of the following regulations applies:

• Is the cost of the ticket linked to the distance travelled? Then the employer’s contribution is calculated on the basis of the fixed lump sums of the railway transport, but the contribution is limited to 75% of the actual transport cost.
• Is the cost of the ticket not linked to the distance? The contribution of the employer is 71,80% of the actual transport cost, not exceeding the lump sum provided for the train for a distance of 7 kilometers.

Private transport

Does your employee come to work using his own car, bike or by foot?

A mandatory contribution to private transport is not provided for by the National Labour Council. Therefore, the employer’s contribution for private transport is often provided for at sectoral or company level. If your sector refers to the lump sums of the railway transport, your employer’s contribution will not increase. However, some sectors refer to a percentage of the actual train fares. In this case, the employer’s contribution to the commuting costs will increase.

Combined public transport

Your employee combines the train with one or more other means of public transport? First of all, check the regulations in your sector.

If your sector does not stipulate anything and if only one ticket has been provided for the whole distance, the employer’s contribution is calculated on the basis of the established lump sums of the railway transport. If several tickets are provided, the employer’s contribution must be calculated separately for each means of public transport. These employer contributions must be added together.

Action point

If your contribution for the commuting costs of your employees increases, we will automatically calculate the correct contribution for you. If there are any changes in the means of transport your employee uses for his/her commuting travel, do not forget to inform your Payroll Business Partner in due time.

Under certain conditions, student work is exempt from normal social security contributions. If those conditions are met, student work is subject to a much lower solidarity contribution (5.42% for the employer and 2.71% for the student).

A student may only work a maximum number of hours per calendar year in order to benefit from the lower solidarity contributions. Until now, the annual limit was 475 hours per year, but the limit has been be increased to 600 hours per year as from 1 January 2023. This measure is valid in the calendar years 2023 and 2024.

If the student works more than 600 hours in 2023 or 2024, the advantageous solidarity contributions will no longer apply from the 601st hour, but normal social security contributions (as for a normal employee) will be due. In 2024, an evaluation will be made on whether to extend this new measure.

! The other conditions for student work, must still be respected. If you would like more information on the strict formalities and conditions for student work, please check our newsletter from 10 June 2022.

The wage norm (= the maximum wage cost development) is set every two years and determines the maximum increase of the salaries in Belgium and at the same time functions as a kind of framework for the biennial wage consultations in the sectors and companies.

For 2023 – 2024, the maximum margin for wage cost development has been set at 0%, which means that wages cannot increase on top of indexations and scale increases. However, not all salary elements are taken into account. In this newsletter, we would like to highlight the possibility to grant employees a non-recurring, result-related bonus or a profit participation bonus. Neither of these bonuses are taken into account for the wage norm. In other words: you can grant these bonuses even when the salary cost in your company may not increase any further.

The non-recurring, result-related bonus

The Belgian legislation foresees in a collective bonus system linked to the results of the company which benefits from a favourable tax treatment. The legal basis for this bonus is collective labour agreement n° 90.

What are the advantages of this bonus?

The CLA 90 bonus is not subject to withholding tax, is tax deductible as a business expense and is not taken into account for example for the calculation of the indemnity in lieu of notice and the holiday pay. It is however subject to a special employer’s contribution of 33% for social security purposes and a solidarity contribution of 13.07% for the employee.

Is there a maximum amount which can be allocated?

Yes, the benefit cannot exceed a certain threshold, that is adjusted to the cost of living on a yearly basis:

• Social threshold = € 3,948 (amount 2023) per employee per calendar year. This amount is subject to a solidarity contribution of 13.07% for the employee.
• Fiscal threshold = € 3,434 (amount 2023) which is exempt from taxes.

What conditions need to be fulfilled for granting the bonus?

• It’s a collective benefit, subject to achieving certain collective results or goals that have been determined in advance;
• The results or objectives must apply to a company, a group of companies, or a well-defined group of employees;
• The results or objectives must be clearly outlined, transparent, determinable/measurable and verifiable. In practice, we notice that objectives linked to numbers (control based on accounting documents) are particularly accepted. Examples of objectives are: achieving a certain turnover during the reference period, decreasing the error range, decreasing the complaints from customers, the increase of the number of clients, …
• At the time of introducing the bonus plan, it should be uncertain whether the results or objectives will be achieved;
• The bonus plan should meet certain formalities, such as drafting an act of adhesion or concluding a collective labour agreement. A mandatory template document must be used. Pro-Pay can assist you in completing this form correctly.

The profit participation bonus

This bonus allows a company to grant a part or the full amount of the profit gained by the company to the employees and benefits on tax and social security level from a favourable treatment. It has a collective nature, just like the non-recurring result-related bonus.

What are the advantages of this bonus?

This bonus is not subject to employer’s contributions for social security purposes. The employee will pay 13.07% as a solidarity contribution and will taxes at a flat rate of 7%.

Is there a maximum amount which can be allocated?

There is no maximum amount as such provided for by the law, but the total amount of the bonuses may not exceed 30% of the total wage mass of the concerned fiscal year. Please note that the profit participation bonus is not deductible as a business expense for corporate taxes.

What conditions need to be fulfilled for granting the bonus?

• The company is subject to corporate taxes or to taxes for non-residents in Belgium;
• The allocation is only possible based on (part of) the profit;
• If the employer grants an identical amount or percentage to all employees, the only formality is a decision of the General Assembly and a written notification by the employer;
• If the employer wishes to grant different bonuses to different categories of employees, an act of adhesion or a collective labour agreement on company level will be required;
• The employer can determine that employees who have been dismissed because of a serious cause and/or employees who have resigned and have left the company during the course of the fiscal year, are excluded from receiving this bonus;
• The employer can also take into account the working percentage of the employees and exclude certain periods of inactivity of the employees during the fiscal year.

Which bonus to offer your employees?

Which premium is best for your employees, depends on what it is you wish to reward exactly.

Would you like to link the bonus to the achievement of certain goals or rather not? Would you like to reward all employees or just one certain category? Or maybe you’d like to combine both bonuses? Even that is possible.

If your company is not subject to corporate taxes or taxes for non-residents in Belgium, the allocation of the new profit participation bonus is not possible. Introducing a non-recurring result-related bonus on the other hand remains a possibility.

Do not hesitate to contact us if you need additional information or if you need assistance through legal@propay.be

Employees who work from home on a structural and regular basis can receive a lump-sum reimbursement from their employer. The maximum amount of this allowance has been increased on January 1, 2023 from € 145,81 per month to € 148,73 per month.

Office allowance increase

As costs related to homework are relatively small and difficult to prove, the social security authorities (RSZ/ONSS) and the tax authorities accept to estimate these costs on a lump sum basis. The office allowance is intended to cover, among other things, costs for heating, electricity, water, insurances, office supplies and refreshments.

The social security authorities have indicated in their intermediary administrative guidelines that the office allowance is indexed again. The maximum amount of € 145,81, which applied from December 1, 2022 until December 31, 2022, has been increased to € 148,73 per month as of January 1, 2023.

The tax authorities follow the amount of the office indemnity as determined by the social security authorities, as well as the evolution of this amount. The amount of € 148,73 is therefore exempt from social security contributions and taxes.

The amount of € 148,73 is a maximum amount. It is therefore not mandatory to grant this maximum amount, but you are free to increase the amount to € 148,73 per month as of January 1, 2023.

We would also like to remind you that a written agreement must be drawn up for teleworkers, in principle at the latest when the employee starts teleworking. In this agreement, specific mandatory provisions must be included, such as the place where the telework will be performed, how the costs will be reimbursed, etc.

Other indemnities for homework

In addition to the office allowance, the employer can also reimburse the following costs on a lump sum basis:

• € 20 per month if the employee uses his/her own internet connection for professional purposes.
• € 20 per month if the employee uses his/her own computer for professional purposes. OR € 10 per month (€ 5 per item) for the professional use of a personal second computer screen and printer/scanner (and this for a maximum of 3 years). Attention, this allowance cannot be combined with the lump sum of € 20 per month for the use of the own PC.

These indemnities have not been increased: the maximum amounts remain the same.

The lump sum amounts can of course only be granted if the office and internet costs are not yet reimbursed to the employee in another way.

Action point

Inform your Payroll Business Partner if you wish to increase the current lump-sum office allowance. The increase is not mandatory.

Each year in January, the salaries are adjusted to the cost of living for employees of companies subject to Joint Industrial Committee 200 (JIC 200). In Belgium, this is referred to as the indexation of salaries.

This indexation is a mechanism whereby salaries are linked to the evolution of the flattened health index. The monthly salary is more specifically increased by a percentage equal to the inflation rate of the previous calendar year. The indexation system as foreseen by JIC 200 is applicable to all employees falling under the scope of this Joint Industrial Committee.

The final percentage of indexation has just been announced and amounts to 11.08%. This implies in practice that the gross salaries will be increased with 11.08% as from 1 January 2023 onwards.

It also entails that the yearly premium that needs to be paid in June 2023 (if not replaced by an equivalent benefit), will amount to 307.94 EUR.

When an employee uses his own car to travel for professional purposes, the employer can reimburse him for the costs incurred.

It is not necessary to be able to prove the exact amount of these costs as the authorities have fixed a maximum lump sum per kilometre that is accepted as a cost proper to the employer. It follows that no taxes and social security contributions are payable for the mileage allowance if the maximum is not exceeded.

Until now, this amount was indexed annually on 1 July. The amount applicable from 1 July 2021 to 30 June 2022 was € 0.3707 per kilometre. On 1 July 2022, that amount was adjusted to € 0.4170 per kilometre.

To support employees in the light of rapidly rising fuel prices, the government has decided to make the following two changes to this lump sum mileage allowance:

• Quarterly indexation

From 1 October 2022, the mileage allowance will be adjusted quarterly instead of annually. As of 1 October 2022, the amount of the mileage allowance will be € 0.4201 per kilometre.

• One-time retroactive increase

The mileage allowance will be increased one-time retroactively for the period from 1 March 2022 to 30 June 2022 to € 0.4020 per kilometre. As an employer, you can therefore retroactively grant this increased amount.

The government wants to encourage employers to grant the maximum (retroactive) accepted amount and has therefore decided that employers can offset a part of their additional cost through a tax credit. For more explanation on this matter, please contact your accountant or tax advisor.

For clarity’s sake, please find below an overview of the maximum mileage allowance in 2022:

The above amounts are maximum amounts. Employers can reimburse the driven kilometres at a lower rate. A higher reimbursement is also possible, but in that case, the burden of proof lies with the employer and the employee. They should be able to prove that the allowance granted is in line with the actual cost.

A condition for the lump sum mileage allowance is that the number of kilometres per year cannot be abnormally high (max. 24,000 kilometres per year). If the number of kilometres is higher, proof must be provided.

We will henceforth inform you about the increase of the mileage allowance on a quarterly basis.

Employees who work from home on a structural and regular basis can receive a lump-sum reimbursement from their employer. The maximum amount of this allowance has been increased on December 1, 2022 from € 142,95 per month to € 145,81 per month.

Office allowance increase

As costs related to homework are relatively small and difficult to prove, the social security authorities (RSZ/ONSS) and the tax authorities accept to estimate these costs on a lump sum basis. The office allowance is intended to cover, among other things, costs for heating, electricity, water, insurances, office supplies and refreshments.

The social security authorities have indicated in their intermediary administrative guidelines that the office allowance is indexed again. The maximum amount of € 142,95, which applied from September 1, 2022 until 30.11.2022, has been increased to € 145,81 per month as of December 1, 2022.

The tax authorities follow the amount of the office indemnity as determined by the social security authorities, as well as the evolution of this amount. The amount of € 145,81 is therefore exempt from social security contributions and taxes.

The amount of € 145,81 is a maximum amount. It is therefore not mandatory to grant this maximum amount, but you are free to increase the amount to € 145,81 per month as of December 1, 2022.

We would also like to remind you that a written agreement must be drawn up for teleworkers, in principle at the latest when the employee starts teleworking. In this agreement, specific mandatory provisions must be included, such as the place where the telework will be performed, how the costs will be reimbursed, etc.

Other indemnities for homework

In addition to the office allowance, the employer can also reimburse the following costs on a lump sum basis:

• € 20 per month if the employee uses his/her own internet connection for professional purposes.
• € 20 per month if the employee uses his/her own computer for professional purposes. OR € 10 per month (€ 5 per item) for the professional use of a personal second computer screen and printer/scanner (and this for a maximum of 3 years). Attention, this allowance cannot be combined with the lump sum of € 20 per month for the use of the own PC.

These indemnities have not been increased: the maximum amounts remain the same.

The lump sum amounts can of course only be granted if the office and internet costs are not yet reimbursed to the employee in another way.

Action point

Inform your Payroll Business Partner if you wish to increase the current lump-sum office allowance.

In the context of the Labour Deal, the government introduced an individual right to training for employees as well as the obligation for the employer to draft an annual training plan. This new legislation entered into force on 10 November 2022, but concerns the right to training as from 2023.

Individual right to training

What?

Until now, there was mainly a collective right to training in Belgium. Per full-time equivalent employee, the employer had to offer a certain number of training days. For this collective right to training, it did not matter that one employee attended more training than another, as long as the total collective training days were achieved at company level.

The Belgian legislator is changing this now. Every employee will have an individual right to training.

The individual right to training includes two types of training:

• Formal training: trainings developed by teachers or trainers. These trainings are characterised by a high degree of organisation and take place outside the workplace.
• Informal training: trainings characterised by a high degree of self-organisation by the employer. The employee has a strong say in the content and timing of training. These trainings usually take place at the workplace.

Scope of application

The number of individual training days depends on the size of the company:

Companies with less than 10 employees do not have to take this individual training right into account.
In companies with 10 to 19 employees, full-time employees are entitled to at least 1 training day from 2023.
In companies with 20 employees or more, full-time employees are entitled to 4 training days in 2023 and to 5 training days per year from 2024 onwards.

For part-time employees or employees who have not yet been employed for a full calendar year, the number of training days will be determined pro rata.

The number of employees employed in the company is determined by taking into account the number of full-time equivalents based on the average employment during the reference period.

How to introduce?

In companies with 10 to 19 employees, the employer must annually determine the number of training days to which employees are entitled by 30 September.

In companies with 20 or more employees, the individual training right is introduced by a CLA at sector level. If no CLA is concluded at sector level, the company should introduce this right by creating an “individual training account” for each employee. As sectors have not adopted CLA’s so far, we explain here what formalities you, as an employer, have to respect when drafting this individual training account.

This individual training account is a form (paper or electronic), which contains the following mandatory elements:

• Identity employee;
• Employment regime;
• Competent joint industrial committee;
• Training credit: at least 4 training days per year in 2023 and at least 5 training days per year from 2024;
• The number of training days attended and number of remaining days or number of days to be carried over to the following year;
• The deadline by which the amount of training days must be taken up.

This form should be kept in the employee’s personal file. Each time the employee attends a training course, the number of training days attended must be indicated in the individual training account as soon as possible.

The employer must inform employees about the individual training account the first time he introduces this individual training account. New employees should also always be informed. At least once per year, the employer must inform employees of the remaining balance of the training credit.

In the absence of a sector CLA or individual training account, each employee of the company has an individual training right of 4 training days in 2023 and 5 training days in 2024.

Annual training plan

What?

Companies with 20 or more employees must draw up an annual training plan concluded for a minimum duration of one year.

This training plan should include at least the following elements:

• The offer of formal and informal trainings referred to in the framework of the individual training right;
• An explanation of how the training plan contributes to investments in the individual training right. After all, the plan should ensure that every employee has an opportunity to follow trainings, and improve employees’ competences.

When drawing up this training plan, the employer should pay particular attention to risk groups (especially employees aged 50 and older and employees with disabilities), bottleneck occupations and gender dimension.

It is possible that sectors will set additional conditions to be met by training plans in the future.

How to introduce?

At the latest by 31 March of the relevant calendar year, the training plan must be finalised. The first deadline will therefore be 31 March 2023.

Before the training plan can be introduced, it must be submitted to the works council and, in its absence, the union delegation, at least 15 days before the meeting in which it is examined. The works council or union delegation will then give its opinion on the draft by 15 March at the latest.

If there is no works council and union delegation, the employer shall submit the training plan to the employees by no later than 15 March of the calendar year concerned.

Within a month of the plan entering into force, the employer must provide a copy to the government electronically. Through which portal this has be done is yet to be determined.

The training plan is kept in the company. Employees can request access to the training plan at any time.

Adjustment of the working regulations

The employer must refer in the working regulations to the employee’s right to training or to the legal or regulatory provisions or CLA’s that regulate sit. This right to training should be introduced through the normal procedure of amending the working regulations.

Foreign employees who are not European Economic Area (EEA) citizens need a work permit or a single permit to work on the Belgian territory, unless they are exempt from this requirement.

Since July 1, 2014, the authority to grant a work permit or a single permit has been regionalized and each region can determine its own conditions to grant a work permit/single permit. They therefore also each determine the salary conditions that may apply to grant a work permit/single permit in their respective region (Brussels-Capital Region, Walloon Region and Flemish Region).

As from January 1, 2023, the following minimum gross salary limits will apply for the category of highly qualified staff, executives who want to work in Belgium and the employees who want to apply for an European blue card:

In addition to these salary limits, other conditions must additionally be met in order for the employee to qualify for a work permit/single permit.

! Please note that the Flemish Ministry of Employment is experiencing a backlog in processing the applications. They have announced the following processing times on their website:

• First application for highly qualified staff: 7 weeks
• First application for the other categories: 9 weeks
• Extension highly qualified staff: 7 weeks
• Extension for the other categories: 7 weeks

The Foreigners Department has informed us that the processing time takes approximately 4-6 weeks from the moment they receive the file from the Ministry of Employment.

Do not hesitate to contact our legal department for more information on immigration at the following e-mail address: legal@propay.be.

In a previous newsletter, we informed you that new measures have been introduced to modernise and make the Belgian labour market more flexible.

In this newsletter, we explain the most important new measures concerning incapacity for work as a result of the act of 30 October concerning various provisions on incapacity for work.

Abolition of medical certificate for one day of incapacity for work

Before the new act, which entered into effect on 28 November 2022, the employee had the following obligations in the event of incapacity for work:

• Inform the employer immediately;
• Provide a medical certificate from the first day of incapacity for work if a CLA in the company or the labour regulations foresees this or if the employer explicitly requests it. He must provide this medical certificate within two working days from the start of the incapacity for work unless a different period is stipulated in the company (in the working regulations or in a CLA).

The law containing various provisions on incapacity for work provides that the employee will no longer have to submit a medical certificate for the first day of incapacity for work, even if the employer requests it. As a result, as from 28 November 2022 the employee will be exempt from presenting a medical certificate for this first day of incapacity for work up to three times per calendar year, if the company provided this obligation in the first place.

The employee will still have to inform the employer immediately of his absence and additionally inform him of the address where he will be staying if it differs from the address known to the employer.

Companies with fewer than 50 employees on 1 January of the calendar year in which the incapacity for work occurs may derogate from this exemption. However, this must be explicitly included in a company CLA or in the working regulations.

New procedure for medical force majeure

Medical force majeure occurs when the employee is permanently unfit for work and can no longer perform his current job.

Until 28 November 2022, the termination of an employment contract for medical force majeure was only possible after the reintegration procedure had ended. Under the new legislation, medical force majeure will be completely separated from the reintegration procedure. The new procedure for medical force majeure can only be initiated after 9 months of continuous incapacity for work. If the employee has an ongoing reintegration procedure, you will have to wait until this procedure is finished.

The start of the procedure can still be requested both by the employee and the employer from the prevention advisor occupational doctor (hereinafter “PAOD”) of your external occupational prevention and protection service.

In summary, the following procedure will have to be followed:

• The PAOD will check whether it is really permanently impossible for the employee to perform the agreed work. During this procedure, the employee will have the opportunity to ask whether adapted or other work is possible.
• If the PAOD decides that adapted or other work is a possibility, the employer will have to check whether this is an option within the company.
• If adapted or other work is technically or objectively impossible, or cannot reasonably be required for valid reasons, the employer will have to argue this in writing, in a substantiated report.

The employment contract can therefore only be terminated for medical force majeure if the employee will indeed definitively be unable to perform the agreed work AND:

• The employee has not asked to explore options for adapted/other work;
• The employer cannot offer other/adapted work or if the employee has refused it.

If the procedure is not followed correctly and no medical force majeure is possible, the procedure ends and a new procedure can only be requested after another 9 months of continuous incapacity for work.

Reintegration procedure 2.0?

The goal of the reintegration procedure is to get sick workers back to work in the company.

As explained above, some changes were made to the reintegration procedure and it was also completely separated from medical force majeure.

We discuss the most important changes below:

• Both the employee and the employer can still take the initiative to start the reintegration procedure, but the employer can now request this as early as after 3 months of illness (instead of 4 months);
• If the PAOD decides that adapted work or another job is possible, the employer must either draw up a reintegration plan or, if it is not possible to offer adapted work or another job, the employer will have to provide detailed reasons for this impossibility.
• The end of the reintegration procedure does not mean that medical force majeure can be invoked. For medical force majeure, the procedure as explained above must be followed.

Changes concerning guaranteed salary

Until 28 November, an employer did not have to pay any guaranteed salary for an employee who progressively resumes work and then falls ill again completely.

From now on, this will be limited to the first 20 weeks counting from the first day of progressive resumption of work. Therefore, if the employee relapses after that 20-week period, the employer will have to pay the guaranteed salary again.

! Action point

Modify your working regulations if you have fewer than 50 employees and you want employees to submit their medical certificate still for one day of illness.

Contact our legal team at legal@propay.be for more information.