Newsletter 2023 – 06

1 Office news

, Mr. Van Rompaey is taking the next step in his career and joining as a partner.

Ms. Renette by Royal Decree of 1 May 2023 (Belgian OfficialGazette appointed as a member of the Advisory Council on Social Criminal Law. The council provides advice on the application of social criminal law, on the integration of existing and new legal provisions into the Code, and on draft implementing decrees. It also conducts studies, ensures the coherence of the regulations, and coordinates the preparation of the annual report.

On 31 May 2023, Mr. Vermeulen and Mr. Renette a presentation on “Enforcement and Evidence in Discrimination Law” at the Vlinderpaleis to the judges of the Labour Court of the Antwerp judicial district.

On June 22nd, Mr. Renette a training session for Welearn.be, a professional association for accountants, tax advisors, auditors, lawyers, and notaries. The training explained the key powers of the social inspection services. The session covered entering workplaces and residences, interrogations, searches, and explored the extent of the duty to cooperate with the inspection.

2 Jurisprudence – parcel services and part-time work – the inability to comply with the law

Tongeren Criminal Court, October 6, 2022, Limburg Legal Life 2023, 119

In a remarkable ruling, the court ruled that in the world of parcel delivery, it is impossible for employers to comply with the rules regarding the timely announcement of variable work schedules, meaning they cannot be punished for violating those rules.

Failure to pay the minimum wage is only punishable if the employer acted with the fraudulent intent of deliberately underpaying wages.

A courier company, H., delivered parcels to the homes of client P. H.'s employees used handheld scanners so P. could track the collection and delivery of the parcels. As part of an investigation into H., the social inspectorate requested the registration data from the handheld scanners of all seven of H.'s employees from P. From this data, the inspectorate concluded that the drivers had worked more than 40 hours per week. During an on-site investigation, the inspectorate also found that H. could not provide work schedules for one part-time employee and that H. should have increased the hourly wage of one employee from €11.202 to €11.427 on September 7, 2018.

The labor auditor requested the conviction of H. and her director for, among other things,

• failure to notify the variable part-time work schedule in a timely manner, i.e. five days in advance;
• the failure to pay, or the failure to pay on time, wages and overtime wages at 150% to the seven drivers;
• failure to pay the minimum wage, as determined by a sectoral collective labor agreement, to one employee.

H. defended herself regarding the notification of work schedules, arguing that P. often only informed her of the route to be followed and the number of parcels the very morning of the work itself, and that unpredictable traffic conditions also affect the duration of the work to be performed.

The court upholds this defense: "Industry practice dictates that packages ordered by customers from online retailers like Bol.com, Amazon, etc. should preferably be delivered to the customer one or at most a few days after the order, sometimes even the same day. This naturally impacts work schedules, which can change at the last minute. The court thus finds that the defendants were unable to comply with the obligation to communicate part-time work schedules to employees five days in advance." H. is therefore acquitted on this count.

Regarding the overtime, the court finds that the data from the handheld scanners is insufficiently reliable, partly because the scanners were sometimes exchanged and because the drivers were not interviewed to verify the data. The court also acquits the courier company and its manager of the charge of failing to pay sufficient wages for the extra work.

Regarding the non-payment of the minimum wage, the court notes that (a) the employer was not questioned on this matter; (b) he was assisted by a social secretariat; and (c) it has not been demonstrated that he acted with the fraudulent intent of deliberately underpaying wages. The court also acquitted the employer in this case.