The labour deal: what impact on your HR policy?

Legal Eubdate
17 March 2022

In mid-February, the federal government reached an agreement on a package of labour market measures known as the “labour deal”. This agreement serves two goals: further modernisation of Belgian employment law (with a focus on flexibility and new trends, such as e-commerce) and achieving an 80% employment rate by 2030. Here is an outline of the measures. However, please note that our contribution is based on general information, as no draft legislation is yet available.

Measures for more flexibility and predictability

The first measure is the possibility of performing the weekly working time over four days. This does not entail a reduction in working time, but an increase in the number of working hours to be performed each day, so that the weekly working time is performed over four days instead of the traditional five.

The conditions are as follows:

  • An employer who wants to make the four-day week regime possible (there is no obligation to do so) must include the framework for this in the work regulations.
  • The initiative lies entirely with the employee, who should write to the employer to request this regime. The employer can refuse, but then must justify the refusal within one month after the request.
  • The employer and the employee must conclude a written agreement. The duration is limited to six months but is renewable.
  • The limits of the daily working time are fixed at 9.5 hours (to be provided for in the work regulations), with the possibility of extending this to 10 hours a day if a company collective bargaining agreement so provides.

A second measure is the alternating working week. This allows the employee to work more, up to a maximum of 45 hours, in one week and to compensate for these additional hours by working fewer hours the following week. The same conditions apply as for the four-day week.

A third measure is that the announcement period for the variable part-time working schedules is extended. From now on, workers must receive information about their working schedule seven working days in advance (instead of five working days). The existing exceptions to this rule are maintained.

Measures for more training

The labour deal reforms the right to training as stipulated in the Workable and Agile Work Act. Companies with more than 20 employees will have to guarantee a minimum number of (formal or informal) training days for each individual employee, namely:

  • from 2022: three training days
  • from 2023: four training days
  • from 2024: five training days.

A collective bargaining agreement, or the individual training account, determines the allocation of the number of training days. This must be done annually, no later than 30 September (for 2022, the deadline is 30 June).

Companies with 10 to 20 employees must guarantee one training day per year per FTE. Companies with fewer than 10 employees are exempt from this requirement.

In addition, companies with at least 20 employees will have to draw up a training plan every year. This must contain an overview of the training courses and the staff categories. The plan must be drawn up annually by 31 March at the latest and submitted to the consultation bodies (or, in the absence of such bodies, to the employees).

Measures for a right to disconnection

The act of 26 March 2018 introduced an obligation for social dialogue on disconnection. The labour deal now introduces a right to disconnection for employees in enterprises with more than 20 employees. A company collective bargaining agreement or the work regulations must regulate this right. The deadline is 1 January 2023.

Measures for an activating dismissal law

The labour deal introduces a so-called “transition path”. An employee who has already found a new job during his/her notice period can be made available to the new employer. The salary (in whole or in part) is charged on to the new employer. The new employer must engage the employee after this transition period under an employment contract of indefinite duration or, if it fails to do so, pay compensation. It is worth noting that the employee will retain his/her full seniority for, among other things, the right to time credit and a career break.

The labour deal also implements article 39ter of the Labour Contracts Act concerning the so-called “employability-promoting measures”. Employees with a notice period of at least 30 weeks will, in addition to the right of outplacement, be able to call upon additional measures such as training, coaching and extra outplacement. These measures will be financed by the employer’s contributions due in respect of the notice period or compensation (up to a maximum of 1/3 of the notice period or compensation, after deduction of four weeks of outplacement).

Measures for e-commerce

To offer more space and flexibility to companies and workers within the e-commerce sector, the labour deal envisages two measures:

  • Experiments: Companies can set up, for a maximum of 18 months, a pilot project of night work between 8 p.m. and midnight, in which workers can participate on a voluntary basis. The consent of trade unions is not required, but a strict procedure involving the social consultation bodies or workers must be followed to make the experiment possible.
  • Introduction of night work: The introduction of night work between 8 p.m. and midnight is possible within the company, subject to the agreement of one trade union through the conclusion of a company collective agreement which must include agreements on premiums.

Measures for platform workers

Article 337 of the Labour Relations Act will include the following list of criteria to determine whether or not there is a presumption of an employment relationship between the platform and the platform worker:

  • Couriers and drivers are not allowed to work for other services.
  • The platform may use geolocation only for “basic services”.
  • The platform may limit the freedom of the worker while performing his/her work.
  • The platform may limit the worker’s income: by paying hourly rates and/or restricting the right of a person to refuse an offer of work on the basis of the rate proposed and/or not allowing him/her to determine the price of the service. Collective bargaining agreements concluded with recognised trade unions are excluded from this clause.
  • The platform may set requirements on how the worker presents himself/herself and behaves during work.
  • The platform may determine the allocation of a task and/or the amount offered on the basis of information gathered by electronic means.
  • The platform can limit the freedom of work organisation through sanctions (e.g. freedom to choose working hours, to refuse a period of absence, to refuse tasks or to use subcontractors or replacements).
  • The platform may effectively limit the worker’s ability to build up a client base or to carry out work for a third party outside the platform.

When three of the eight criteria are met, or at least two of the last five criteria, there is a presumption that the platform worker is an employee. This presumption can be refuted by the platform on the basis of the general criteria of the Labour Relations Act.

Measures for more diversity

Finally, the labour deal also stipulates that the Federal Service for Employment will map out the diversity within the various sectors. If a company deviates significantly from the standards within its sector, an action plan will have to be drawn up to improve this.

And now?

The draft texts were submitted to the National Labour Council on 7 March 2022, and the Council now has 60 days to express its opinion. This will be followed by a second reading in the Council of Ministers. After that, discussion in the Chamber of Representatives will follow, and hopefully publication in the Belgian Official Gazette. The Office of Federal Minister of Employment Dermagne has confirmed that the aim is for publication to take place as soon as possible, and in any case before the summer.