Newsletter 2023 – 07

Office News – Chelsea Huygen joins Mploy

Mploy is delighted to welcome Chelsea Huygen. She joined the Hasselt office on September 1st, where she will focus specifically on dismissal law and social criminal law.

Rush Hour HR – festive edition on October 17, 2023

For this anniversary edition, we're taking a break from the standard format. We'll be featuring hot topics with three renowned guest speakers.

As a labor economist, Prof. Stijn Baert backs up his insights with data. He will show us how the labor market will work in 2023 and how you can tailor your recruitment policy accordingly.

Robrecht Hendrickx will passionately explain why we should take the importance of meaning in today's professional lives seriously and where the demand for "value-added" 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 possibility to register can be found here.

Legislation – work resumption bonus of 1000 euros per employee

Employers who employ an employee within a progressive return-to-work scheme between April 1, 2023, and March 31, 2025, can apply for a return-to-work bonus of €1,000.

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

Progressive return to work means that an employee who was previously fully incapacitated due to illness or accident partially returns to work, performing modified (part-time) or other (lighter) work. This requires the permission of the health insurance fund's medical advisor. During this period of progressive return to work, the employee receives part sickness benefit from the health insurance fund and part wages.

In practice, it is found that employers are not always inclined to allow or organise such a partial return to work.

To encourage employers to invest more in this progressive return to work program, a return to work bonus of €1,000 per employee will be awarded. The bonus is paid by the health insurance fund. For now, this is a temporary measure, which will also take effect retroactively: employers who employ an employee on a progressive return to work program between April 1, 2023, and March 31, 2025, can apply for the bonus.

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 don't ask, you get nothing. The employer must submit an application. This application can be submitted no sooner than after three months of permitted activity by the employee, and no later than two years after the third month of permitted activity.

Source: Royal Decree of 17 July 2023 establishing the conditions for awarding the return-to-work bonus charged to the benefits insurance, Belgian Official Gazette of 31 July 2023.

Dirk Heylen, lawyer
dirk.heylen@mploy.be

Legislation – an end to permanent appointments

Decree of 16 June 2023 amending the Provincial Decree of 9 December 2005 and the Decree of 22 December 2017 on local government, regarding the termination of the status of statutory staff member (BS 10 July 2023, entry into force 1 October 2023)

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

The rules of the Employment Contracts Act of July 3, 1978, are declared "mutatis mutandis applicable" to statutory employees. Termination of a statutory employment contract will therefore be possible

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

The articles in the Employment Contracts Act concerning transition procedures (Article 37/13) and the severance package for a notice period of at least 30 weeks (Article 39ter) will apply to the dismissal of a statutory employee. Termination due to medical force majeure will also be possible, provided the procedure stipulated in Article 34 of the Employment Contracts Act is followed. The option to transfer statutory employees to the sickness pension scheme will remain. However, disciplinary proceedings will no longer be able to lead to dismissal or removal from office.

The decree stipulates that the termination of the employment of a statutory staff member must not be manifestly unreasonable and must be based on reasons relating either to the conduct or suitability of the staff member, or on necessities for the functioning of the administration. It may not be a termination that would never have been decided upon by a normally and reasonably acting local authority (application of the general principles of good administration). The decree contains no sanction.
The Flemish Government is empowered to determine “the detailed rules for the termination of statutory employment”.

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be

In collaboration with Larcier Intersentia, Mploy is organizing a training session on November 9, 2023, regarding the new dismissal rules for civil servants.
Interested? Email westerlo@mploy.be.

Jurisprudence – Checkin@work – contractor's criminal liability

Cass. June 27, 2023.

The judge must clarify the factors that will determine that the workers found had entered the site at the contractor's behest. The mere presence of the workers on the site in question is not sufficient to establish a violation of Article 31quinquies, paragraph 3, of the Welfare Act on the part of the contractor.

On April 1, 2024, ten years will have passed since the obligation to electronically register the presence of employees at the construction site, better known as “Checkin@work”, came into effect. Safely enshrined 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 on every (sub)contractor the obligation to ensure that the data relating to his undertaking are actually and correctly registered and transmitted to the government database. It is therefore primarily up to every (sub)contractor himself to be responsible for the registration of his own employees.
• The (sub)contractor towards 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 transmits all data. Every (sub)contractor may consult the data registered by his co-contractor at any time. Some therefore argue that a duty of verification rests on the (sub)contractor to check and follow up on these registrations. Others go a step further and interpret the second paragraph as placing the ultimate responsibility on 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 point more to an obligation of effort than to an obligation of result. Had the legislator actually intended to establish ultimate responsibility, this should also be evident from the text in so many words. That is not the case. The focus will likely shift to the extent of the efforts made by the (sub)contractor to take the necessary measures. The Implementing Decree of 11 February 2014 specifies a number of these measures. For instance, the written contract for services must mandatorily contain a number of clauses: the co-contractor must not only be informed of its obligation to actually and correctly register and transmit all data, but must also contractually commit to doing so. Furthermore, the co-contractor must also be informed of its obligation as a processor of personal data.
• The contractor with regard to links further down the contracting chain: the third paragraph stipulates that every contractor or subcontractor must ensure that every person entering the temporary or mobile workplace on their instructions is registered before entering the construction site. As a rule, it will be the employer who instructs their employees to enter a construction site. After all, who else could give this instruction without interfering with the employer's authority? In a judgment of 27 June 2023, the Court of Cassation ruled that the judge must clarify on the basis of which elements he concludes that the employees found had entered the site on the contractor's instructions. The mere presence of the employees on the site in question is not sufficient in itself to conclude that the contractor has violated Article 31quinquies, paragraph 3, of the Welfare Act. Article 31quinquies,paragraph 3, does not clarify exactly what the duty of care entails. Viewed from the principle of legality, such a vaguely defined obligation is problematic, but unfortunately not an exception when it concerns punishable infringements of the Welfare Act.

Following several highly publicized cases involving alleged abuses on large construction sites, calls for clients to be made more accountable are growing louder. Rather than enacting new laws or penalties, the legislature should evaluate existing instruments and clarify them where necessary.

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