The Workable and Flexible Work Act of 5 March 2017 has significantly changed the obligations of employers with respect to staff training. It provides for a cascade system regarding how the individual employer should comply with its obligations in relation to the interprofessional training target. Here we provide you with guidelines for determining which legal requirements apply to your business. 


Background

Before 1 January 2017, private sector employers needed to spend a target amount equivalent to 1.9% of their total annual payroll on staff training. Employers in a sector that had not reached the 1.9% budgetary aim had to pay a penalty equivalent to 0.05% of their total annual payroll. 

The Constitutional Court annulled this regime on 23 October 2014 (judgment no. 2014/154). In response to this, new rules were adopted regarding staff training in the Workable and Flexible Work Act of 5 March 2017. In this respect, inspiration was sought from the Expert Group's Report "Competitiveness and Work", and specifically from its Chapter 5 – "Companies' training efforts", issued in November 2015. The new legal requirements came into force on 1 January 2017. 

New requirements: cascade system

Employers must provide their employees with an average of five days of staff training per year per FTE. This five-day average is the "interprofessional training target" and is assessed at sector level. Consequently, employees do not have an individual right to demand five days of training per year. 

All private sector employers whose workforce consists on average of at least 10 employees must comply with this legal obligation. However, specific rules apply to employers with a workforce of between 10 and 19 FTEs.

However, the Act provides for a cascade system with regard to how the individual employer should comply with its obligations in relation to the interprofessional training target. Employers are required to provide details of how they have complied in their annual social balance sheet. 

New sector-wide collective labour agreement

Employers in a sector that has issued a new sector-wide collective labour agreement regarding the interprofessional training target should follow the rules set out therein. Joint Committees nos 200, 207 and 226, among others, have already issued such collective labour agreements.

Old sector-wide collective labour agreement

Employers in a sector that does not yet have a new sector-wide collective labour agreement, but which has a sector-wide collective labour agreement implementing the previous system (regarding the 1.9% salary mass target) for 2013–2014 and 2015–2016 and which has been extended for 2017–2018 should follow the rules set out therein. 

Individual training accounts

Employers in a sector that does not have any relevant sector-wide collective labour agreement can opt to work with the "individual training account" system. 

An individual training account is an electronic or hard-copy document that is kept in the employee's individual file. It must grant the individual employee the equivalent of at least two training days per year in terms of credit points. These credit points are prorated for part-time employees and for new hires who joined the workforce during the current calendar year. Any untaken days of staff training are automatically transferred to the following year. The individual training account must also provide for a "growth path", which is a gradual increase in the number of credit points so as to eventually reach the interprofessional training target of five staff training days on average per FTE per year.

An employer wishing to work with an individual training account must inform the employees about this. The employer must also inform each employee of the number of outstanding credit points every year. 

Default rules

Employers in a sector that does not have any relevant sector-wide collective labour agreements and who do not opt for individual training accounts will automatically fall back on the default rules set out in the Act.

These default rules can be summarised as follows:

  • the employer must offer an average of two days of staff training per FTE; the number of staff training days is prorated for part-time employees and for new hires who joined the workforce during the current calendar year;
  • the employee concerned can follow training during working hours as well as outside working hours; if staff training is followed outside working hours, the employee concerned is entitled to his/her regular pay, but not to overtime pay;
  • the Government can increase the number of staff training days as of 1 January 2019.

Conclusion

Each employer should verify which staff training requirements apply to its business. In the absence of any relevant sector-level collective labour agreement, the employer can choose either to work with the individual training account system or to comply with the default rules.

Adopting the individual training account system will increase the amount of red tape that companies need to deal with.