On 6 December 2024, the Private Investigation Act was published in the Belgian Official Gazette. This act replaces the Detective Act of 19 July 1991, which was outdated. In this newsletter, we discuss the Private Investigation Act and why it has a greater impact on HR personnel than the Detective Act. In response to this act, we recommend that you (re)examine specific aspects regarding information gathering and monitoring of applicants and employees. In this newsletter, we give you specific points of attention to consider.

What is a “private investigation activity”?

Private investigation activities are activities that:

(1) Are performed by a natural person;

(2)Are at the request of a principal;

(3) Consist of collecting intelligence obtained from processing information on natural or legal persons or about the circumstances of the acts they have committed; and

(4) Aim to provide the collected intelligence to the principal in order to safeguard their interests in the context of an actual or potential conflict or to trace missing persons or lost or stolen goods.

In HR, this refers, for example, to an investigation into an act committed by an employee based on which the employer decides to impose a disciplinary sanction or terminate the employment contract.

The Private Investigation Act excludes certain activities from its scope, with two particularly relevant to HR:

1. Activities carried out on behalf of the client to fulfill legal obligations or assignments, which do not have private investigation as their own objective, for example, prevention advisors conducting an investigation following an (in)formal request for psychosocial intervention.

2. HR employees who search for information about an applicant on the internet, with previous employers or with the reference persons provided by the applicant (see below).

Does an HR department fall within the scope of the act?

When an HR department structurally performs private investigation activities for its own employer or identifies itself as such, it qualifies as an “internal private investigation service” and falls within the scope of the law. Structural means that the activity is part of the duties of at least one employee.

However, there is debate as to whether HR departments that only occasionally perform private investigation activities also fall within the scope of the law.

Until this debate is clarified, we recommend applying the rules of the Private Investigation Act as good practice for precautionary purposes. In light of this new act, we also advise reviewing whether other aspects of your HR policy, regarding the gathering and investigation of information about applicants and employees, are in compliance with the applicable regulations. Below is a brief overview of the most relevant rules in the WPO and other relevant regulations.

Gathering and investigating information about applicants

1. What information can be requested during a job application?

In view of the applicant’s right to privacy, only the information necessary for the selection of the applicant may be requested during an application process. Requesting sensitive data, such as the applicant’s judicial record and health information, is in principle prohibited, unless a legal exception applies.

2. Searching information on the internet, with the former employer or with reference persons

Even though such investigation is excluded from the scope of the Private Investigation Act, there are several points to consider under privacy legislation.

In the case of a reference check, the principle remains that it must be necessary for the selection process. Employers may not systematically verify information provided by applicants with third parties and must first seek clarification from the applicant themselves. Additionally, the applicant’s consent is required for this, including with regard to the purpose of collecting the data and the individuals being consulted. The applicant must also always be informed when information is being requested.

Verifying, gathering and investigating information about employees.

1. Internal regulation regarding private investigation.

Employees must be aware that private investigation activities may be carried out. The Private Investigation Act therefore provides that the authorization and modalities of private investigations must be included in a regulations (for example, in a collective bargaining agreement, annex to the working regulations or a decision of the works council). We recommend including the regulations in a policy as this offers more flexibility.

The act provides for a period of 2 years to draft this regulation, meaning this regulation will have to be drafted by 16 December 2026. During the transition period, private investigation activities can be carried out without a regulation in place, although the other provisions of the Private Investigation Act must still be complied with. If the regulation is not established by December 16, 2026, and a private investigation is conducted after this date, all findings from this investigation will be considered null and void.

2. Interviews

The rules regarding interviews in the Private Investigation Act do not lead to the nullity of findings, if they are not followed, but we still recommend following them as a good practice when interviewing employees. According to the Private Investigation Act, an interview may only take place with the prior consent of and specific information provided to the employee concerned.
After the questioning, a written report must be drawn up. If the interview is recorded, explicit consent is required from the employee, and the employee is also entitled to a free copy of the recording.

3. Monitoring of employees

Employers can monitor their employees in various ways, such as monitoring of professional e-mail and internet usage, recording professional phone calls, workplace surveillance through cameras, or tracking company vehicles through geolocation. When creating a policy regarding these forms of employee monitoring, the following three principles must always be taken into account:

• Finality: control and monitoring must always have a legitimate purpose based on regulations and the DPA.
• Proportionality: Monitoring must not go beyond what is strictly necessary and must respect the employee’s privacy to the maximum extent possible.
• Transparency: Employees must be clearly informed about all aspects of the monitoring. In principle, this can be done through a policy, the working regulations or the employment contract.

Some forms of control also require additional consultation, prior information or even the consent of employees.

! Action point :

• Be careful what information you request during job applications. Inform the applicant and obtain their consent if necessary, if you intend to conduct a reference search or check the applicant’s social media.
• Establish a regulation for employees that clearly states that private investigation activities can be conducted and what the modalities are.
• As a good practice, keep in mind the rules in the Private Investigation act regarding interviews.
• If you monitor employees through camera surveillance, email monitoring, etc., check whether the obligations for consultation and information have been met, and whether employee consent is required.

If you have any questions on this topic, please do not hesitate to contact us at legal@pro-pay.be.

Employees who use their own car to travel for professional purposes, can receive a reimbursement from their employer 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 (“mileage allowance”). This mileage allowance is exempt from social security contributions and taxes if the maximum amount per kilometre is not exceeded.

The new amount applicable starting from 1 April 2025 until 30 June 2025 is 0.4320 EUR per kilometre.

As a reminder: the amount applicable from 1 January 2025 until 31 March 2025 was 0.4290 EUR per kilometre. Note that there is a slight increase compared to the previous amount.

However, it is alternatively possible to opt for the annual indexation of the mileage allowance. An employer can therefore choose between the quarterly indexed amounts or the annual indexed amount, which amounts to 0.4415 EUR per kilometre for the period from 1 July 2024 to 30 June 2025. In the latter case, the employer should thus maintain the same amount during the entire period.

We reiterate that the number of kilometres per year should not be abnormally high (max. 24,000 kilometres per year). If the number of kilometres is higher, proof must be furnished.

The quarterly and yearly indexed amounts are maximum amounts. Employers can reimburse the driven kilometres at a lower rate without any discussion. 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.

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 1 March 2025 from 154.74 EUR per month to 157.83 EUR 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 154.74 EUR has been increased to 157.83 EUR per month as of 1 March 2025.

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 157.83 EUR is therefore exempt from social security contributions and taxes.

The amount of 157.83 EUR is a maximum amount. It is therefore not mandatory to grant this maximum amount, but you are free to increase the amount to 157.83 per month as of 1 March 2025.

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 EUR per month if the employee uses his/her own internet connection for professional purposes.
  
• 20 EUR per month if the employee uses his/her own computer for professional purposes.
  OR 10 EUR per month (5 EUR 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 EUR 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.

On 1 February 2025 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.

First of all, 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:

1. For employees who come to work by public transport, the employer is obliged to pay a contribution as from the 1st kilometre. 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 been adjusted by the collective bargaining agreement no. 19/11 of 8 April 2024. This collective bargaining agreement also introduced a system of automatic increase in the employer’s lump-sum contribution whenever the prices of NMBS/SNCB train tickets increase.
   
2. For employees who come to work by bicycle, the employer is obliged to pay a bicycle allowance. Since 1 May 2023, the employees belonging to a sector that has not concluded a collective bargaining agreement on bicycle allowances or employers that have not concluded a company collective bargaining agreement must grant the bicycle allowance imposed by the National Labour Council, the indexed basic amount of which amounts to 0.29 EUR (indexed amount 2025) per kilometre.
   
   This bicycle allowance is exempt from social security contributions and taxes up to a certain amount. Since 1 January 2025, the maximum exempt amount is 0.36 EUR per kilometre. Moreover, the annual threshold of 2,500 EUR has been increased to 3,610 EUR since 1 January 2025. The part of the annual bicycle allowance exceeding the threshold will be subject to social security contributions and withholding tax.
   
3. For employees who come to work by their own means of transport (e.g. car), 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 2025, the NMBS/SNCB increased its ticket fares by 2.91%. The rates for the train subscriptions have been increased by 3.03%. 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 bargaining 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 has been increased based on the amounts of the collective bargaining agreement no. 19/11 of 8 April 2024 and will be increased automatically once the rail fares increase.
  
• 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:

1. 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.
   
2. 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 kilometres.

The CBA no. 19/11 removed the minimum distance requirement of 5 kilometres.

Private transport

Does your employee come to work using his own car 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.

Does your employee come to work by bicycle? Then price increases of the NMBS/SNCB will have no impact on your contribution to the commuting costs.

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 their commuting travel, do not forget to inform your Payroll Business Partner in due time.

Since the Labour Deal, employers with at least 20 employees must establish a formal training plan each year.

More information on what must be included in this formal training plan, can be found in our previous newsletter.

The draft training plan must first be shared with the Works Council, or in absence thereof the union delegation, or in absence thereof the employees every year by 15 March at the latest. The final training plan must then be established by 31 March at the latest.

Once the final training plan is established, the training plan must be submitted electronically via the application https://www.transfer.werk.belgie.be/.

! Please note that the obligation to establish and register an annual training plan must be distinguished from the obligation to register the employees’ training courses in the Federal Learning Account (or alternatively until 31 March 2025, in an individual training account).

Deadlines

1. Training plans for 2023 and 2024: must be submitted by 1 March 2025 at the latest.
2. Future training plans: must be submitted within one month after the plan enters into force.
   Consequently, if the deadlines above for establishing the training plan within the company are respected, the training plan for 2025 must be submitted by 30 April 2025 at the latest.

If you have any further questions about this topic, do not hesitate to contact us via legal@pro-pay.be.

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

The competence for granting a work permit or a single permit has been regionalised. Consequently, each region can determine its own conditions for granting a work permit/single permit. Flanders changed its rules regarding single permits with effect from 1 May 2024. The main changes are as follows:

1. Extension of grounds for refusal and withdrawal

An authorisation to work can be withdrawn or refused in Flanders on certain grounds to prevent abuse. In doing so, Flanders distinguishes between optional and mandatory grounds for refusal and withdrawal. The new rules further expand these grounds for refusal and withdrawal. For example, it will be possible to refuse an authorisation to work if the employer does not carry out sufficient economic or social activities that justify the employment of foreign employees or if the company was founded less than three years ago or has no employees. Especially for start-ups, this means that it will become more difficult to recruit third-country nationals in the company’s early years.

2. Categories

Unless a certain exemption can be applied, the foreign employee has to belong to a certain category in order to obtain an authorisation to work in Flanders. Each category is subject to certain conditions and procedures. You can find below a short overview of the new rules regarding the categories that are most common in practice.

a. Highly skilled employees

To qualify for the category “highly skilled employee”, two conditions must be met:

• The gross annual salary of the employee must meet a certain salary threshold during their employment in Belgium:
• For employees aged 30 or older, this threshold amounts to 48,912 EUR gross (amount for 2025).
• For employees younger than 30 years old, a reduced salary threshold of 39,129.60 EUR gross applies, which corresponds to 80% of the salary threshold for employees aged 30 and older

• The employee should be able to present at least qualification level 5 (bachelor’s degree). Under the old regulations, this required at least a 3-year degree, but this condition has now been removed.

b. Medium-skilled positions

Two conditions apply to this category:

• There is a structural shortage of suitable employees in the labour market for the position in question. There is a legal presumption that this condition is met if the job appears on the list of middle-skilled positions that is now revised every two years at the latest.
• The application is made by an employer based in Belgium. A secondment from a foreign company is therefore not possible for middle-skilled positions.

Under the new regulations, additional documents will also have to be submitted from now on when submitting an application under this category.

c. “Other” category

If the employee does not fall under any of the other categories, an employer based in Belgium may apply for an authorisation to work under the “other” category.

Under this category, there is no presumption of a labour market shortage. Consequently, in the past, a labour market research had to be carried out by the VDAB to fall under this category. This meant that a vacancy had to be posted in a shared administration on the VDAB website for at least 6 weeks before an application could be submitted under this category.

Under the new rules, an application under this category has to meet the following conditions:

• The position must appear on the shortage occupations list published annually by the VDAB.
• The job requires a qualification of level 2,3 or 4.
• The vacancy must have been published on the platforms of VDAB and EURES for at least 9 weeks within a period of 4 months preceding the application. Publication on EURES is automatic if the vacancy was posted on the VDAB platform.
• When the vacancy is published, the employer requests active mediation by the VDAB. This means that the VDAB actively looks for suitable candidates for the position in question.

Moreover, additional documents must now also be submitted when applying under this category.

3. Only one authorisation to work

It is now explicitly stated that an employee can be granted only one authorisation to work for the same period.

An important exception to this principle is that employees who already have a single permit can hold a flexi-job on top. In that case, however, the general conditions for exercising a flexi-job must be met, which requires, among other points, that the employee in question must work at least 4/5th with the first employer.

! Action points: Check if existing immigration files meet the new conditions or have an expert perform an audit to verify that all conditions are met.

For further questions, please feel free to contact our legal department at the following e-mail address: legal@pro-pay.be.

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.

Although the wage norm for 2025–2026 is not yet known, we would like to draw your attention once again through this newsletter to the non-recurring, result-related bonus or a profit participation bonus. Both types of bonuses are not taken into account for the wage norm. In other words: you can grant these bonuses even when the maximum wage norm is not yet known or 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 = € 4.164 (amount 2025) per employee per calendar year. This amount is subject to a solidarity contribution of 13.07% for the employee.
• Fiscal threshold = € 3.622 (amount 2025) 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.

! If you wish to draw up a plan for the entire calendar year 2025, this plan must be submitted to the Ministry no later than April 30, 2025.

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.

In our newsflash of October, we informed you about the obligations regarding the Federal Learning Account (“FLA”) and how we can assist you with them. On 20 December 2024, a law was published that temporarily postpones these obligations. Below an updated status.

As a reminder: before the publication of this law, every employer had to register all training courses followed by employees between 1 January and 30 September 2024 in the FLA by 30 November 2024 at the latest. As of 1 December 2024, the employer had to register all attended training courses no later than one month after the end of each quarter.

! The new law postpones this deadline to 1 April 2025. Until that date, employers have the option to:

• Continue registering the courses followed as of 1 January 2024 in the FLA;

OR

• Record these training courses in an individual training account. This is a paper or electronic form in which the employee’s training credit is recorded.

For more information on the training account and the formalities to be observed when drafting it, please refer to our newsletter.

Action point?

Although the deadline has been postponed, we recommend continuing to register training courses followed as of 1 January 2024 in the FLA. This ensures that everything is properly registered before the new deadline. Furthermore, the individual training account is expected to disappear again as of 1 April 2025.

If you have any questions about our services relating to the FLA or the associated fees, please do not hesitate to contact us at legal@propay.be.

Employees who use their own car to travel for professional purposes, can receive a reimbursement from their employer 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 (“mileage allowance”). This mileage allowance is exempt from social security contributions and taxes if the maximum amount per kilometre is not exceeded.

The new amount applicable starting from 1 January 2025 until 31 March 2025 is 0.4290 EUR per kilometre.

As a reminder: the amount that was applicable from 1 October 2024 until 31 December 2024 was 0.4293 EUR per kilometre. Note that there is a slight reduction compared to the previous amount.

However, it is alternatively possible to opt for the annual indexation of the mileage allowance. An employer can therefore choose between the quarterly indexed amounts or the annual indexed amount, which amounts to 0.4415 EUR per kilometre for the period from 1 July 2024 to 30 June 2025. In the latter case, the employer should thus maintain the same amount during the entire period.

We reiterate that the number of kilometres per year should not be abnormally high (max. 24,000 kilometres per year). If the number of kilometres is higher, proof must be furnished.

The quarterly and yearly indexed amounts are maximum amounts. Employers can reimburse the driven kilometres at a lower rate without any discussion. 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.

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 amounts to 3.58%. This implies in practice that the gross salaries are increased with 3.58% as from 1 January 2025 onwards.

This also entails that the yearly premium that needs to be paid in June 2025 (if not replaced by an equivalent benefit), will amount to 323.69 EUR.