2022 brings a warm autumn in terms of HR law with (1) the labour deal, (2) new legislation on transparent and predictable working conditions, (3) new legislation on the work-life balance for parents and carers, and (4) changes to reintegration processes for sick employees and the termination of employment contracts on grounds of medical force majeure.
In a series of four Legal Eubdates, you will read what impact these measures could have on your HR policy.
In this second contribution, we offer an overview of employers’ new obligations in relation to transparent and predictable working conditions. An Act of 7 October 2022 and CLA no. 161 concluded in the National Labour Council on 27 September 2022 implement European Directive 2019/1152 on transparent and predictable working conditions in Belgian law.
Transparent working conditions
From now on, you must inform your personnel in writing about the essential aspects of their employment relationship and keep proof thereof. This applies to private and public sector employers, and includes statutory personnel.
You must provide new personnel members with information, at the latest on their first day of work, relating to at least the following elements:
- the identity of the employer and the employee,
- the place of work (possibly various places or free choice, arrangements for travel between the place of work and the employer’s domicile),
- the function (with title, grade, nature, or category (or sometimes description) of employment),
- the date of commencement of the employment relationship and, for a fixed-term employment relationship, the end date or expected duration,
- the renumeration (the initial amount and other components, such as fringe benefits) and the payment method and frequency,
- the probationary period (if applicable), and
- the (fixed or variable) working schedule.
Members of the personnel who are already employed can also request this information.
You must include in the work regulations information on:
- the procedure to terminate the employment relationship (including the deadline for appeal),
- the collective agreements and/or collective bargaining agreements concluded in the company or the competent joint committee,
- the training entitlement, and
- the competent social security institution.
Predictable working conditions
Private sector and contractual public sector employees will have new rights to make their working conditions more predictable:
- Parallel employment – You cannot prohibit your employee from working for another employer outside of their working schedule unless you are allowed to do so by law.
- Mandatory training – If you are obliged to provide certain training courses, the employee must be able to attend these free of charge and during working hours, unless this is impossible. A training clause is not allowed for such training.
- Right to request a form of employment with more predictable and secure working conditions – Employees can assert this right from six months’ seniority; for example, they can request a fixed rather than a variable working schedule, or full-time rather than part-time employment. You must respond to the request with a reasoned decision within one month of receiving it. For the private sector, this is regulated by CLA no. 161.
- Maximum duration of probationary periods – An employment agreement for temporary work, temporary agency work or student work can only contain a probationary period proportionate to the expected duration of the agreement and the nature of the agreed work. Successive probationary periods are prohibited.
- Minimum predictability of variable working schedules – Employees can refuse to perform services that do not fit within a timely notified working schedule and/or the daily and weekly timeframe within which the employer can determine work performance. As an employer, you will be required to pay for belatedly cancelled services.
Protection against adverse treatment and dismissal
The Act of 7 October 2022 and CLA no. 161 contain a new protection regime for private sector and contractual public sector employees who file a complaint with the employer or with the competent inspectorate or file a legal claim for violation of this legislation. The employer cannot take any measure adverse to the employee concerned or dismiss (or prepare to dismiss) him/her except for reasons unrelated to the complaint or legal action. This protection also applies to other persons in the company who supported or assisted the employee.
Note: As an employer, you often bear the burden of proof, and employees who are victims of breaches may be entitled to lump-sum damages!
These new employer obligations already apply, and non-compliance can be sanctioned under the Social Penal Code.
The new right of employees to demand a form of work with more predictable and secure working conditions is an additional focus for your HR policy. This new protection regime, yet again, puts the focus on the need to document your personnel files.
An update is imminent for the basic documents you use in your personnel policy, such as models of offer letters and employment agreements, and for the work regulations.