The political agreement on the Belgian labour deal (resulting from Government discussions running since October 2021, ending in a compromise on 17 June 2022) has finally been reflected and laid down in a bill submitted to parliament on 7 July 2022 (Doc 55/2810). The bill will now go through the parliamentary process to become effective in the Autumn of 2022.
1. The stated objective of the labour deal is to significantly improve the employability rate in Belgium (of the active population) from 70% to 80% in 2030. To achieve that objective, the labour deal purports to:
- Enhance the work-life balance for employees.
- Guarantee more substantive vocational training rights.
- Attempt to reinvigorate the labour market.
- Respond to the challenges of the digital labour market (by improving working conditions for platform workers).
Whether these measures – some of them outlined below (or in part 2, to be published hereafter) – may have such a beneficial effect on employment and employability remains to be seen.
2. The most eye-catching measures in the package, of direct relevance to the business community, are the following:
- under (i), the 4-day work week, a system of alternating work weeks, the rules on variable work schedules, and the right to disconnect;
- under (ii), individual enforceable training entitlements;
- under (iii), the transition trajectory for employees on notice, re-employability measures in case of termination, and more lenient rules for evening work;
- under (iv), enhanced protection for platform workers who readily may be presumed to be employees, including workers in so-called ‘vulnerable’ industries, plus a requirement to take out occupational hazards insurance, irrespective of the workers’ social status.
3. The introduction of a 4-day work week in any business requires either an amendment to the work regulations (with approval of the works council, if and when there is one), or alternatively, – in case the company’s effective work week exceeds 38 hours (with a maximum of 40 hours) – the conclusion of a company collective bargaining agreement. Those texts can introduce the possibility of working 9.5 hours/day (i.e. 38 hours/week). Subsequently, any individual worker can request, in writing, a 4-day work week schedule to be applied for a renewable period of 6 months. An individual agreement must be concluded to that effect specifying terms and conditions before commencing the new work week schedule.
In practice, this means that the trade unions always have a say on the introduction of the 4-day work week, either through their required approval of work regulation amendments in the works council, or through the required company CBA for companies operating a system of working time reduction days (effectively working between 38 and 40 hours, although industry-wide weekly working time is 38 hours or lower).
The workers’ rights are protected twofold: first, any employer rejecting the request for a 4-day schedule must motivate its refusal in writing within one month from the request; second, an employer cannot terminate the employment contract of any worker who filed such a request, based on grounds relating to the request.
4. The alternating work week looks like a quite complex way of accommodating employees with child care, allowing work weeks which call for more or less working time in the week depending on the child (and school) care that week, in a two-week cycle. The boundaries of daily and weekly working time limits within this system are the same as for the so-called ‘small flexibility’ measures (9 hours/day and 45 hours/week). As for those measures, this alternating work week system needs to be introduced into the company’s work regulations, with specific rules on the average work schedule, start and end time, workdays of the week, minimum and maximum working time/day and week.
As for the 4-day work week above, the double protection of the employees’ rights is also applicable here: refusal to accommodate an employee’s request requires a motivated response in writing, and an employer is not allowed to terminate the employment contract on grounds related to the request for alternating work weeks.
5. In connection with variable weekly work schedules, the government wants to revert some of the flexibility of the current regulations. Currently, variable weekly work schedules need to be communicated to the individual employees at least 5 business days in advance. This is now being changed into a 7-day advance notice. Also, specific rules of advance notice for part-time employees working in variable schedules are being amended. On top of that, certain exceptions are provided for specific industries on grounds unknown.
All the above measures (under 3-5) enter into effect when the Act enters into effect, i.e. 10 days after publication in the Moniteur belge.
6. The highly mediatised right to disconnect is also, however, sparsely regulated in the bill. The right to disconnect for the employees, including the implementation measures designed to regulate the use of digital equipment to observe and respect rest periods and vacation as well as preserve the balance between professional and private life, must for all companies employing 20 or more employees be outlined in either a company CBA, or failing that, the work regulations. If these rules are the subject matter of an industry-wide or national CBA rendered binding by Royal Decree, no company CBA or work regulation amendment is required.
Content-wise, the parties are supposed to set out the practical terms of the employee’s individual right to disconnect outside of working hours and define the guidelines for use of digital equipment in such a way that rest time, vacation, private life and family life of the employee are protected. The provision also calls for training and sensitisation programmes for employees and management on ‘the intelligent use of digital equipment and the risks connected with excessive connection’.
By 1 January 2023, the company CBA or amendment to the work regulations should be concluded.
7. The bill contains an entire chapter on (individual) training rights of employees.
First, every company occupying 20 or more employees must establish a training plan of minimum annual recurrence, subject to information/consultation of its works council (or failing that, the trade union delegation, or failing that, the entire workforce). The training plan must contain a list of all formal and informal training opportunities the company will offer, including the evaluation methods for the training and specifying the target group to whom the training is addressed. Bottleneck professions, workers aged 50-plus within the industry, workers of 40-plus threatened with redundancy, long-term unemployed, etc., must also be included. The plan must also indicate how and to what extent it contributes to the investment in training, outlined hereafter. These measures enter into effect on 1 September 2022.
Second, the bill creates an individual right to vocational training for each employee of any company with 10 or more employees (companies with fewer employees are exempt from these obligations). Companies with 10-20 employees can reduce the training rights to one day per year for each employee. Essentially, any full-time employee is entitled to 5 paid training days per year (pro-rated for part-timers) from 2024 onwards. Training can be formal (outside company premises, organised by the employer or third parties, job-related or not), or informal (on-site or conferences). Industry-wide CBAs are supposed to regulate the type of training which qualifies for these purposes, the training account for each employee (with a credit of 5 days per year), and potentially the reduction of the number of training days to 2 per year.
Absent such a CBA, individual training accounts can be established for each employee, including specific mentions (identity, work schedule, identity of joint committee, training credit, number of training days pursued per year, etc.).
At the end of each calendar year, the accrued but untaken training rights can be transferred to the following year until the end of the fifth year (end 2028), at which time any accruals are forfeited.
The training days are with pay, and if pursued outside of regular working hours, additional normal pay is due.
Upon termination of the employment contract for serious cause or through resignation, any outstanding accrued balance of training rights is forfeited. In case of dismissal on notice, the outstanding balance of training days must be taken during the notice period; in case of dismissal with compensation instead of notice, the outstanding training days are part of the benefits and hence of the severance package) and the value of such benefit shall be determined by Royal Decree.
These measures enter into effect the day the Act is published in the Moniteur belge.
8. This updated regime for vocational training calls for quite a few comments, the most pressing of which are as follows:
First, it is unclear how this new regime aligns with existing rules and regulations on vocational training.
For instance, the Act of 5 March 2017 (on Workable and Agile Work) established a system of individual training rights with a training account, etc. What about collective agreements or arrangements that companies made in this context, since this part of the 2017 Act is being abolished? What about the various sectoral initiatives on vocational training which have been gradually put in place for over 25 years (e.g., the functioning of Cevora for JC 200)?
What about the congruence of this new regime with the old paid educational leave or training leave (organised at regional level)? Can they all be combined or cumulated?
This leads to the second comment: vocational training, including activation of unemployed persons, appears to belong to the legislative and regulatory remit of the regions pursuant to the last State reform and not to the remit of the federal government.
Would we have a constitutional issue here in terms of authority to legislate?
Contrary to other policy measures designed to improve and inspire vocational training and hence enhance employability, these measures put the full financial weight on the shoulders of the business community, without any financial aid, incentives or compensation. Training leave, for instance, is partially sponsored by the regional government, but nothing of that kind here.
9. By way of summary – and before launching the second part of the analysis of the bill – we can tentatively conclude that most if not all of the measures taken in the labour deal appear to improve and strengthen employees’ rights and accommodate them to a great extent in the modern workplace. They are the beneficiary of a number of new enforceable rights, such as the right to adjust work schedules to personal and family circumstances, the right to disconnect and the right to enhanced vocational training.
The pendulum clearly appears to be swinging in favour of the supply side of the labour market to steeply facilitate the supply of labour (there are multiple ‘carrots’ out there). Whether in terms of challenges to work organisation, reduced flexibility or pure financial cost and risk, the corresponding burden appears to fall entirely on the shoulders of business.
Therefore, it is highly questionable whether such a lopsided approach to the current labour market challenges will be instrumental in attaining the mantra of an employability rate of up to 80% of the active population.
For further information, please contact:
Pieter De Koster, Partner, Bird & Bird
pieter.dekoster@twobirds.com
