Newsletter 2023 – 07

Office news – Chelsea Huygen joins Mploy

Mploy is very happy with the arrival of master Chelsea Huygen . She has joined the office in Hasselt since September 1, where she will focus in particular on dismissal law and social criminal law.

Rush Hour HR – festive edition on October 17, 2023

For this anniversary edition we would like to deviate from the standard format. We present hot topical topics with 3 renowned guest speakers.

As a labor economist, Prof. Stijn Baert knows how to support his insights with figures. He will show us what the labor market will be like in 2023 and how you can tailor your recruitment policy accordingly.

Robrecht Hendrickx will explain in a very passionate manner why we must take seriously the importance of meaning in today's professional existence and where the demand for 'valuable' jobs comes from.

Where absenteeism policy often ends up in a legal approach, Bart Teuwen will share his expertise on how things can be done differently.

More information and the option to register can be found here .

Legislation – return to work premium of 1000 euros per employee

Anyone who employs an employee within a progressive return to work between April 1, 2023 and March 31, 2025, as an employer, can apply for a return to work premium of 1,000 euros.

The employee must have been incapacitated for work for at least 1 year and must have progressively resumed work for at least 3 months.

The progressive return to work means that an employee who was previously completely incapacitated for work due to illness or accident, partially returns to work by performing adapted (part-time) or other (lighter) work. This requires the permission of the health insurance fund's advisory physician. During this period of progressive return to work, the employee partly receives a sickness benefit from the health insurance fund and partly a salary.

In practice, it has been established that employers are not always inclined to allow or organize such a partial return to work.

To motivate employers to focus more on this progressive return to work, a return to work premium of 1,000 euros per employee is awarded. The premium is paid by the health insurance fund. For the time being, it is a temporary measure that will also come into effect retroactively: employers who employ an employee in a progressive return to work between April 1, 2023 and March 31, 2025 can apply for the premium.

The period of incapacity for work must have lasted at least one year. The employee must have performed the activity permitted by the health insurance fund for at least three months.

As is often the case: if you ask for nothing, you get nothing. The employer must submit an application. This application can be submitted at the earliest after three months of authorized activity by the employee and at the latest within two years after the third month of authorized activity.

Source: Royal Decree of 17 July 2023 establishing the conditions for granting the return to work premium charged to the benefit insurance, Belgian Official Gazette 31 July 2023.

Dirk Heylen, lawyer
dirk.heylen@mploy.be

Legislation – an end to permanent appointment

Decree of June 16, 2023 amending the Provincial Decree of December 9, 2005 and the Decree of December 22, 2017 on local government, with regard to the termination of the status of statutory staff member (Belgian Official Gazette July 10, 2023, effective October 1, 2023)

The decree more or less equalizes the dismissal regulations for statutory employees and contractors of provincial and local governments and makes the labor courts and tribunals competent for disputes regarding the dismissal of a statutory employee.

The rules of the Employment Contracts Act of 3 July 1978 are declared to be “mutatis mutandis applicable” to statutory employees. The termination of statutory employment will therefore become possible

• with notice (with the same notice periods as for contractors);
• for an urgent reason;
• due to force majeure.

The articles in the Employment Contracts Act on the transition processes (Article 37/13) and the dismissal package for a notice period of at least 30 weeks (Article 39ter) apply to the dismissal by notice of termination of a statutory employee. Termination due to medical force majeure will also be possible, provided that the procedure set out in Article 34 of the Employment Contracts Act is followed. The option to transfer statutory employees to the sickness pension system remains available. Disciplinary proceedings, on the other hand, can no longer lead to an official dismissal or impeachment.

The decree stipulates that the termination of the employment of the statutory staff member may not be manifestly unreasonable and must be based on reasons that are either related to the behavior or suitability of the staff member or are based on necessities for the functioning of the board.
It may not be a termination that would never have been decided by a normal and reasonable local government (application of the general principles of good governance). The decree does not contain a sanction. The Flemish Government will be given the authority to determine “the further rules for the termination of the statutory employment contract”.

Ludo Vermeulen, lawyer-partner
ludo.vermeulen@mploy.be

In collaboration with Larcier Intersentia, Mploy is organizing a training course on November 9, 2023 in connection with the new dismissal rules for civil servants.
Interested? For more information, email westerlo@mploy.be .

Jurisprudence – Checkin@work – criminal responsibility of the contractor

Cass. June 27, 2023.

The judge must clarify on which elements he determines that the employees found had entered the site on behalf of the contractor. The mere presence of the employees at the site in question is not sufficient for the contractor to conclude that there has been an infringement of Article 31quinquies, third paragraph, of the Welfare Act.

On April 1, 2024, ten years will have passed since the obligation to electronically register the presence of employees on site came into effect, better known as “Checkin@work”. Safely contained in Article 31quinquies of the Welfare Act, the system has grown over the years into one of the most widely used instruments in the fight against social fraud.

A central role is reserved for the contractor of the works or the subcontractor of the works accepted by him.

• The (sub)contractor: the first paragraph imposes an obligation on every (sub)contractor to ensure that data relating to his company is actually and correctly registered and forwarded to the government database. It is therefore primarily up to each (sub)contractor to register its own employees.
• The (sub)contractor with regard to his co-contractor: the second paragraph directly affects the contractual relationship between the (sub)contractor and the party with whom he collaborates: the (sub)contractor must take the necessary measures to ensure that his co-contractor actually and correctly registers and forwards. Each (sub)contractor can consult the data registered by his co-contractor at any time. Some therefore argue that the (sub)contractor has an obligation to check and follow up on these registrations. Others go one step further and read in the second paragraph the ultimate responsibility of the (sub)contractor for correct attendance registration for all employees of his co-contractor. This interpretation goes too far: “taking the necessary measures” seems to indicate an obligation of effort rather than an obligation to achieve results. If the legislator actually wanted to establish ultimate responsibility, this should also be clear from the text. That is not the case. The focus will then probably shift to the extent of efforts that the (sub)contractor has made to take the necessary measures. The implementation decision of February 11, 2014 specifies a number of these measures. For example, the written construction agreement must contain a number of clauses: the co-contractor must not only be made aware of his obligation to actually and correctly register and transmit all data, he must also contractually undertake to do so. Furthermore, the co-contracting party must also be made aware of his obligation as a processor of personal data.
• The contractor with regard to links further down the construction chain: the third paragraph stipulates that every contractor or subcontractor must ensure that every person who enters the temporary or mobile workshop on his behalf is registered before he enters the construction site. As a rule, it will be the employer who instructs his employees to enter a site. After all, who else could give this instruction without interfering with employer authority? In a judgment of June 27, 2023, the Court of Cassation ruled that the judge must clarify on which elements he determines that the employees found had entered the site on behalf of the contractor. The mere presence of the employees at the site in question is not sufficient in itself to conclude that the contractor has committed an infringement of Article 31quinquies, third paragraph of the Welfare Act. Article 31quinquies third paragraph does not clarify what the duty of care exactly entails. Viewed from the principle of legality, such a vaguely defined obligation is problematic but unfortunately not an exception when it concerns punishable violations of the Welfare Act.

Following a number of highly publicized cases about alleged abuses on large construction sites, the call for clients to be made more accountable is becoming louder again. Rather than issuing new laws or penalties, the legislator should evaluate the existing instruments and clarify them where necessary.

Steven Renette, attorney-partner
steven.renette@mploy.be