Author: ibizz

The government wants to get dismissed employees back to work faster by increasing their employability in the labour market and aims to reduce the threshold for moving to a new job.

In this newsletter, we discuss two new measures that make the Belgian dismissal legislation more flexible in this sense, namely the measures for the promotion of employability and the transition path.

Measures for the promotion of employability

What?

An employee dismissed from 1 January 2023 by the employer with at least 30 weeks’ notice period/severance indemnity (= at least 9 years’ service) will be entitled to follow the “employability promotion measures”. The right does not apply if the parties opt for a transition path (see point 2).

Incidentally, the law does not define what the employability promotion measures are, but they could include additional training, coaching or outplacement.

Conditions

In particular, this means the following:

• In case of dismissal with a notice period: the employee may, from the beginning of the notice period, be absent from work with pay to follow the employability promotion measures.
• In case of dismissal with a with severance indemnity, the employee must make himself available to follow the employability promotion measures. The employee’s obligation to make himself available to follow the employability promotion measures ends as soon as he enters into a new employment relationship or becomes self-employed.

In cases of dismissal with at least 30 weeks’ notice period/severance indemnity, the employer already had an obligation to make an outplacement offer to the employee. These measures come on top of that.

These employability promotion measures are financed by the employers’ social security contributions during 1/3 of the notice period or by the employers’ social security contributions on 1/3rd of the amount of the entire severance indemnity.

Transition path

What?

Employees dismissed by their employer with a notice period will be given an extra opportunity in their search for other work, i.e. the so-called “transition path”.

The transition path allows the employee to start working for another employer (=”employer-user”) during the notice period with a view to a final recruitment. At the end of the transition path, the employer-user has the obligation to offer an employment contract of indefinite time. If this is not done, the employer-user will have to pay a compensation.

The organisation of the transition path is done by a temporary work agency or the regional employment services (VDAB, Forem, Actiris). So there are four parties involved in this construction.

Conditions

Before the start of the transition path, the four parties must enter into a written agreement detailing the terms of the transition path.

The period of the posting may not exceed the notice period to be performed.

During the transition path, the original employer pays the salary valid for the position with the new employer. Only if the original salary was higher, the original employer will continue to pay that salary. However, the employer-user will have to reimburse a part of the salary to the original employer.

Early termination of the transition path

Although the purpose of the transition path is to conclude an employment contract of indefinite time, both the employee and the employer-user have the option of terminating the transition path early by using a notice period based on seniority from the start of the transition path. In that case, the employee will in principle return to the original employer to perform the remaining notice period there.

Seniority

When the employee enters into service with the employer-user, his seniority starts counting from the start of the transition path. However, a particular feature is that the employee retains the full seniority accrued with his original employer for the right to time credit, career break and thematic leave.

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 transposition of the European Directive concerning transparent and predictable working conditions by the act of 7 October 2022, as well as the national CLA no. 161.

New individual and collective information obligation

From now on, the employer is obliged to inform the employee in writing about his essential employment conditions.

This includes information on the place of employment, the function, the start date of employment, salary and extra-legal benefits, working time schedules and provisions relating to overtime. The employer should provide this information no later than the first working day and if the employment conditions change.

The most logical thing to do is to include this information in an employment contract or an annex to the employment contract, but it can also be communicated to employees via another document.

A number of collective provisions – e.g. the applicable timetables in the company, the right to training, the dismissal procedure and the appeal period – have to be included in the labour regulations. Most companies will therefore have to amend their labour regulations.

This law only applies to employees who start to work on 10 November 2022, unless the employees themselves request this information.

When the employee is assigned to work in another country for more than 4 weeks, there is a more comprehensive obligation to inform the employee about, among other things:

• the country or countries where the work is to be performed and its expected duration;
• the currency in which wages will be paid;
• if applicable, the benefits in cash or in kind associated with such foreign employment.

There is an additional, more detailed information obligation if the employee is posted to an EU Member State.

New rights and extension of current rights

New rights for employees are created or existing rights are extended:

• An exclusivity clause is no longer valid: the employer may no longer prohibit the employee from working for another employer during the employment relationship; unless this is permitted by law (e.g. it is still prohibited to compete with the employer).
• The employee must be able to attend, free of charge and if possible during working hours, any training necessary to perform his job. We will inform you about all new training obligations in the context of the employment deal in the coming weeks.
• Guarantee minimum predictability of working schedules in the case of variable hourly schedules. The employee may refuse to work if the working schedule was not notified in time or does not fall within the period as stipulated in the working regulations. Additionally, the employer will have to pay the employee for the service that was cancelled untimely by the employer.
• The employee has the right to ask the employer for more predictable and secure working conditions. This right was further elaborated in collective agreement no. 161, concluded in the National Labour Council, which we discuss further below.

CLA no. 161

A new collective labour agreement was concluded in the National Labour Council on September 27, 2022, introducing the right for employees to ask for work with more predictable and secure working conditions.

The employee decides what he understands by predictable and more secure working conditions. This could include, for example: a contract of indefinite time instead of a fixed-term contract, a full-time contract instead of a part-time contract, a fixed working schedule instead of a variable one, etc.

To request the predictable and more secure working conditions, the employee makes a reasoned request to the employer (at least 3 months before the desired start date) after which the employer has 1 month to respond (2 months if the employer has less than 20 employees). If the employer cannot accede to this request, he must motivate this in writing to the employee.

There are some conditions attached to this request: the employee must have been employed for a minimum of 6 months and must have the qualifications and competences for the work he’s requesting. Of course, the employee must accept the working schedule and working conditions of this new work.

The employee who makes this request is protected against dismissal and “adverse treatment” by the employer (e.g. change of working conditions) under penalty of damages.

! Action points

1. Check whether your employees do have an employment contract or are at least informed in writing about the essential employment conditions.
2. Are your working regulations still up to date? As a result of the Labour deal, several adjustments are indeed possible / mandatory. Be sure to have this checked.

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

As part of the Labour Deal and the transposition of a European directive, the Belgian legislator has taken new measures on flexible working time. The aim is to promote flexibility and the work-life balance. Below, we provide an overview of measures and their impact on your business:

The 4-day week

The 4-day week allows a full-time employee to spread his weekly working time over 4 days instead of 5 days.

The following procedure must be respected to introduce the 4-day week:

1. An employee who wishes to accede to this 4-day scheme must submit a written request to his employer. This request should include the time period during which he will work in a 4-day week (maximum 6 months, but renewable), as well as the chosen inactivity day.

2. The employer receiving this request may accept or refuse it:

• If the employer refuses the request, he must give reasons for the refusal in writing within 1 month.
• If the employer accepts the request, the agreement between the parties must be formalised in an agreement, which must contain certain mandatory elements.

3. Moreover, the 4-day week should be introduced at company level before the above agreement is concluded.

• If the employee works 38 hours or less per week, an amendment to the working regulations is sufficient to introduce the 4-day week (by following the normal procedure for amending the working regulations). The employee can then work 9.5 hours per day.
• If the employee works between 38 and 40 hours a week, a collective labour agreement (cla) at company or sector level will be required. Such a cla will automatically adjust the working regulations. In this case, the employee may work up to 10 hours a day.

In any case, no voluntary overtime can be performed on the “fifth” day.

Finally, the employee also benefits from special protection against adverse treatment and dismissal in the context of this application or his working scheme.

Alternating weekly regime

The alternating weekly regime allows the employee to perform the weekly working time per cycle of 2 consecutive weeks. In the first week, the employee may exceed the maximum working time of 45 hours, in order to work fewer hours in the second week, so that the total weekly working time per 2-week cycle is achieved.

In certain cases, the 2-week cycle can also be extended to 4 weeks.

The procedure for the introduction of the alternating weekly regime is similar to the one for the 4-day week (request, agreement valid for up to 6 months but renewable, amendment of working regulations, protection, etc.).

The employee may terminate this alternating weekly regime at any time if he notifies the employer at least two weeks before the start of a new cycle. The employer does not have the option to do so.

Notification of variable working schedules to part-time employees

Previously, employers had to inform their part-time employees with variable working schedules at least 5 working days in advance about their working schedule. This obligation also had to be included in the working regulations.

The Labour Deal now extends this period to 7 working days. However, this period can be shortened (as was the case before) by concluding a cla at sector level. However, it will not be possible to make this period shorter than 3 working days.

Moreover, the Labour Deal also provides for certain transitional provisions for specific joint industrial committees (such as the hospitality or cleaning sector).

The current periods will continue to apply until the working regulations are amended, but no later than August 20, 2023.

Conditions for flexible working arrangements

Employees with more than 6 months’ seniority will be given the right to apply for flexible working arrangements to care for a child or provide personal care to a family member for a serious medical reason.

This right allows the employee to request the adjustment of the existing working pattern, through teleworking, reduction of working hours or adjustment of the working schedule. This requires a specific procedure to be followed.

Finally, the employee also has special protection against dismissal and adverse treatment.

Care leave

The employee may take up to 5 days of care leave per calendar year, whether consecutive or not.

The days of care leave are charged to the 10 days of leave for compelling reasons per calendar year and are not paid.

! Action points

1. If your company wants to introduce a 4-day week or an alternating weekly regime, or if one of your employees has made a request to switch to one of these systems, do not hesitate to contact the legal department via legal@pro-pay.be.

2. If you employ part-time employees with variable working schedules, please contact our legal department in time to amend your working regulations before August 20, 2023.
Please note that the normal procedure for amending working regulations, which takes at least 15 days, must be followed before the adjustments can enter into effect.

Each year in January, 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.

With this newsletter, we would like to inform you that the high inflation of the past few months will lead to a historically high indexation in January 2023. Due to the automatic salary indexation, the salary cost for the employer will significantly increase.

Based on current forecasts, we expect that the indexation percentage for January 2023 will be approximately 10,85%.

We will inform you of the final indexation percentage at the latest early January 2023.

The Belgian government wants to modernise the labour legislation and has introduced several changes to this end through the so-called ‘Labour Deal’. This Labour Deal contains several measures aimed at creating a higher employment rate in Belgium and a better work-life balance for employees. One of these measures is the right to de-connect, which we discuss in this newsletter.

For whom?

Only employers who employ 20 or more employees are obliged to comply with this new right to de-connect. Employers employing less than 20 employees may, of course, introduce this right to de-connect in the company as well.

What does this right entail?

The right to de-connect gives the employee some safeguards to avoid having to be constantly available or ‘online’ after working hours. Concretely, as an employer, you should work out the following three modalities.

1. The practical modalities of the employee’s right not to be available outside his or her working schedule. For example: guidelines not to answer e-mails or calls outside working hours, turning off servers outside working hours, activating absence messages and referral messages, using e-mail signatures that emphasise the non-necessity of an immediate response…
2. The guidelines for the use of digital tools so that the employee’s rest periods, holidays, private and family life are safeguarded.
3. Training and awareness-raising actions, both for employees and managers, on the wise use of digital tools and the risks associated with excessive connection.

Introduction in the working regulations (or company CLA)

Employers employing 20 or more employees must lay down the three above modalities of this right to de-connect in the working regulations or in a collective labour agreement (CLA) at company level at the latest by January 1, 2023.

However, the employer’s obligation to introduce this right to de-connect in the working regulations or in a company CLA, will lapse if a CLA at sectoral level or a CLA declared generally binding at national level is concluded on this matter. For the time being, no such CLA’s exist.

! Action points

• If your company employs more than 20 employees, contact our Legal Team (legal@pro-pay.be), so that we can include the right to de-connect in your working regulations. Please note that a certain procedure to modify the working regulations must be followed, which takes at least 15 days before the changes can enter into force. Therefore, please contact us in time so that the right to de-connect is applicable in your company by January 1, 2023 at the latest.
• If appropriate, prepare an analysis of the measures that your company can realistically take and/or wishes to take in the context of the right to de-connect.
• In the context of the Labour Deal, other measures also have to be compulsorily included in the working regulations (or company CLA). We will inform you of these other measures in due time so that the various changes can be incorporated into the working regulations at once.

In recent months, a large number of employment measures have been adopted in order to modernise and making the Belgian labour market more flexible, as well as in the context of the transposition of European directives.

The measures in question, which have been partially published, are incorporated in several legal sources, including the “employment deal”.

These new provisions will have significant consequences in many areas, both for employers and employees.

In view of the large number of measures adopted, we will discuss the most important novelties, divided by theme, in our next newsletters. We briefly sum up what’s to come below.

Right to deconnect

A right to deconnect has been introduced for employees. This allows employees to find a better work-life balance through rest periods where the employee can be totally “disconnected” from work.

Incapacity for work and return to work

The reintegration trajectory for employees with long-term incapacity enables them to return to work and reintegrate into the labour market. This reintegration trajectory has undergone significant changes (“reintegration trajectory 2.0”).

The rules on medical certificates have also been adapted.

Flexibility and working time

The new measures aim to promote greater flexibility and work-life balance. This is reflected in a modification of certain legal provisions relating to working time:

• It will be possible to work a 4-day week, while maintaining the same weekly working time.
• Employees will be able to request to work according to an alternating weekly schedule. By working more in week X, they will be able to reduce their working time in week Y.
• The employer will have to notify his employees, employed under a variable part-time working regime, 7 working days in advance of these schedules, compared to 5 working days previously.

In addition, the transposition of a new European directive ensures that employees will have the right to ask for more flexibility in their working conditions.

Transparent and predictable working conditions

Here we look at the transposition of a second European directive into Belgian law, which aims to improve the working conditions of employees by promoting more transparent and predictable employment.

In this framework, employers will have to provide their employees with certain information related to key aspects of the employment relationship in a timely manner.

Activation of dismissed employees: promotion of employability and transition trajectory

New rules will also apply to dismissals. First of all, measures to promote employability will be put in place. An employee dismissed with a notice period will be able to take time off work during this notice period to attend training or coaching. Employees dismissed with a severance indemnity will be required to make themselves available for employability measures.

Secondly, the employee will soon have the opportunity to start a “transition trajectory” with a new employer during his notice period, with a view to a quicker return to the labour market.

Training of employees

Employees have a right to training, which will take the form of a number of training days per year, organised by their employer, as well as free training if it is necessary for the performance of the work.

Employers will also have to set up a training plan within their company in certain cases.

We will explain each of the points above in detail in the coming weeks.

As 2022 is gradually coming to an end, we want to provide you with an overview of the Belgian public holidays for 2023, and a reminder of the rules applicable to replacement days.

Public holidays in 2023

New Year’s Day Sunday, January 1st 2023

Easter Monday Monday, April 10th 2023

Labour Day Monday, May 1st 2023

Ascension Day Thursday, May 18th 2023

Whit Monday Monday, May 29th 2023

Belgian National Holiday Friday, July 21st 2023

Assumption Day Tuesday, August 15th 2023

All Saints’ Day Wednesday, November 1st 2023

Armistice Day Saturday, November 11th 2023

Christmas Monday, December 25th 2023

Applicable rules

In theory, in Belgium, employees cannot work on public holidays.

If a public holiday falls on a Sunday or another day which is normally a non-working day (usually a Saturday), it must be replaced by a replacement day on a normal working day. The employer, however, is obliged to pay the employee a normal salary for that holiday. In the list above, the public holidays that fall on a non-working day in the course of 2023, have been marked in bold. Employees are entitled to two replacement days in 2023: one for New Year’s Day (1 January) and Armistice Day (11 November).

The law of January 4, 1974 provides for the manner in which replacement days should be determined. In theory, the Joint Industrial Committee competent for each sector, may decide when replacement days shall fall, but we don’t see this very often in practice. If the Joint Industrial Committee has not taken its decision before October 1, 2022, each company may decide for itself when the replacement days for its employees will fall in 2023. The company may take that decision in one of the following ways:

• By the Works Council;
• If the company has no Works Council, by agreement between the union representatives and the employer;
• If the company has a Works Council nor union representatives, by agreement between all the employees and the employer;
• If no agreement can be reached for the whole company, individual agreements may be drawn up between the employer and each employee.

If replacement days cannot be decided upon using one of the solutions above, they automatically fall on the next normal working day following the public holiday (usually a Monday).

Employers must inform their employees of the replacement days for 2023 by displaying a signed and dated document on the company premises before December 15, 2022. A sample of such a document can be obtained from your Payroll Business Partner at Pro-Pay.

The end of the year is approaching: colleagues are making arrangements for the holidays between Christmas and the New Year and a few forward-looking souls are already dreaming about their holiday destination for the summer of 2023. On the other hand, the workaholics don’t have time for time off… Let’s look into some frequently asked questions about holidays.

Accrual of taking annual leave. What are the basic rules?

According to the Belgian legislation on holidays, an employee accrues holiday rights based on her/his professional performance in the preceding calendar year. The calendar year during which the employee takes her/his holidays is referred to as the holiday year. The preceding calendar year, during which the entitlement is accrued, is referred to as the holiday reference year.

The same rules determine that an employee needs to take her/his legal holidays before the end of the holiday year. In other words, the employee is obliged to take all her/his legal holiday accrued in 2021, by 31 December 2022.

… but what about holiday rights for next year taking into account the COVID-19 crisis?

The days of temporary unemployment days due to force majeure corona (“corona unemployment”) in 2020 and 2021 were assimilated to worked days for the accrual of holidays in holiday year 2021 and 2022.

For the year 2023, there is still no certainty about a possible extension of this assimilation. In the absence of any extension, days of corona unemployment will not be automatically assimilated to worked days.

If a decision is made in this regard, we will certainly keep you informed. Of course, the employer is always free to consider all days of corona unemployment as worked days.

My employee asks if (s)he can carry over holidays to the next year. Is that allowed?

The law states that carrying over leave is not allowed and that an employee who does not take all of her/his holidays consequently loses the non-taken days. A white-collar worker can therefore not ask her/his employer to pay these days. These rules did not change as a consequence of the COVID-19 crisis: the legislator did not introduce an amendment to allow employees to carry over statutory holidays to a next year in 2021, nor in 2022.

For blue-collar workers the rules are different: they receive their holiday pay directly from the National Holiday Fund and the holiday pay remains acquired, whether or not they take all their holidays.

Please note that in practice, a lot of Belgian companies allow for a limited number of legal holidays to be carried over at the employee’s request which then have to be taken within a limited timeframe.

What are the possible consequences for me as an employer if not all the holidays are taken?

As an employer, you have the obligation to ensure that your employees take their holidays. Not meeting that legal obligation can be sanctioned with an administrative and even a criminal fine.

In practice, you need to make sure to inform your employees sufficiently about the fact that they need to take their outstanding holidays. If your employee, notwithstanding your efforts to warn her/him, decides not to take the days (s)he is entitled to, then you will not risk any of the aforementioned sanctions.

What if it is not possible for my employee to take her/his holidays?

If the employment agreement of your employee was suspended, e.g. because of a long absence due to illness or if your employee could not take her/his holidays because of a force majeure, you need to pay the employee the balance of the outstanding legal holidays. The fact that the employee was on long-term temporary unemployment, is not considered as force majeure.

My company grants the employees extra-legal holidays on top of their legal holidays. What does the law state with regard to those days?

The Belgian legislation does not provide for a legal framework when it comes to extra-legal holidays. The practical consequence is that you as an employer can determine the playing field and can consequently state that extra-legal holidays can be carried over. We recommend to set forth the rules in the working regulations of the company.

How can I keep an overview of the outstanding holidays of my employees?

If your HR department does not have an own calendar to keep track of the holiday entitlement of the employees, Pro-Pay can assist with a practical tool. Your Easy Absence Planner (YEAP) can assist you in the management of all types of absences, including all sorts of leave. It is of the greatest importance to report all the absences of your employees in view of your legal obligations as an employer and the entitlement of the employee to certain social benefits.

With YEAP, the management and tracking of the holiday counters of your employees is really straightforward.

Action!

• Provide your employees with an overview of their outstanding legal holidays.
• Remind them of the rules regarding taking and carrying over holidays.
• If this has not yet been dealt with: determine the rules regarding taking and carrying over extra-legal holidays, preferably in the working regulations.

Each year in January, 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.

With this newsletter, we would like to inform you that the high inflation of the past few months will lead to a historically high indexation in January 2023. Due to the automatic salary indexation, the salary cost for the employer will significantly increase.

Based on current forecasts, we expect that the indexation percentage for January 2023 will be approximately 10,53%.

In November, we will provide you one last time with an indexation forecast. We will inform you of the final indexation percentage at the latest early January 2023.

In response to the autumn “booster” vaccine, the Belgian government has decided to reintroduce the right to leave of absence for vaccination against COVID-19 from 1 October 2022 to 31 December 2022.

This right to leave of absence already existed earlier this year until 30 June 2022. Despite the fact that several people have already received their booster vaccination in recent weeks, the leave of absence will only be reintroduced as from 1 October 2022.

Vaccination leave is considered as a leave of absence. Employees are given the right to be absent from work for the time required for the vaccination, as well as for the travel time to and from the vaccination centre, while retaining their normal salary. “The time required for the vaccination” therefore means that employees are not automatically entitled to half or a full day of paid absence.

In order to be entitled to the salary, the employee must inform the employer in advance and inform the employer as soon as possible of the time of his vaccination, as soon as the he knows this time. The employer may ask the employee to present the proof of the confirmation of the appointment. Only if the confirmation would not mention the time of the appointment, the employer may ask to present the invitation of the appointment itself.

The employer may only use the proof of the confirmation of the appointment or of the invitation of the appointment for the proper organisation of the work and for the correct payroll administration. The employer may only note the time of the appointment and register the employee’s absence as leave of absence, without specifying that it is a leave of absence for vaccination purposes. In concrete terms, this means that the employer is not allowed to make a copy of the proof of the appointment or of the invitation to the appointment! The information contained therein cannot be copied by writing it down by hand either.

Finally, we would like to point out that this right to vaccination leave has yet to be formalised in a law. This will happen soon, but in the meantime, we recommend that you already grant vaccination leave to your employees now.