Newsletter 2024 – 01

2 Rush Hour HR – March 12, 2024 – 7.45 am – 4Wings (Westerlo)

Limburg.net has been hacked. The hacker has stolen more than 300,000 customer data. This would involve files with addresses, national register numbers and also information about repayment plans, debt mediations and court documents.

How do we as a company handle data from employees, customers and suppliers? For example, what do we do with track & trace data, site registration data, job applications, recorded images, mailboxes of (former) employees, etc.?

Afterwards, in the first part we will discuss the theory and legislation regarding GDPR .

After the break, we will review a wide range of practical examples and answer all your questions. Do you have a case that you would like to submit? Send your question to westerlo@mploy.be.

The end is scheduled for around 11 am.

In addition to the live edition on site, you can also choose to follow it online. You will have to provide your own delicious breakfast.

Participation costs 50 euros (excl. VAT). You can here .

3 Judiciary – RSZ contributions – target group reduction

Revoke the right to target group reduction based on information from public databases? Not too fast!

Labor Court of Ghent (Bruges department) November 10, 2022, TGR 2023, 151-164

Our labor courts and tribunals regularly rule on disputes in which target group reduction is central. A typical dispute arises as follows: an employer recruits his first employee and - whether or not on the advice of his social secretariat - applies for a target group reduction. On the occasion of such an application, no a priori check is made whether the employer meets the legal conditions to benefit from this reduction. Checks on this only take place afterwards, sometimes up to three years after the award.

An allocated contribution reduction has therefore not been acquired. This sometimes means that it is a rude awakening for employers who, in complete good faith, have made use of the contribution reduction and then suddenly receive a letter from the RSZ stating that they have wrongly used this and that the amount has remained unpaid. still have to pay social security contributions. The employer who does not agree with this can of course go to the labor court, but in the meantime existing budgets are being called into question and there is great uncertainty.

The main reason for the NSSO to cancel a target group reduction is that the intended objective of increased employment is not achieved. According to the law, additional employment must be measured at the level of the "technical business unit" of which the applicant is a part. Until recently, this crucial concept was not legally defined. Only on the basis of the parliamentary preparation could it be deduced that the legislator wanted to avoid that a mere adjustment of the legal status of the employer without real creation of employment would open up the right to a target group reduction. Enter the judiciary.

In order to conclude on the existence of a “technical business unit”, case law requires the simultaneous presence of social and economic criteria. More specifically, the labor courts will examine whether there is a social and economic interrelationship between the targeted companies.

Social interconnection usually occurs when the same employees have worked in both companies or when there are common directors.

The economic interconnection refers to the business activity in the targeted companies and whether it is identical, similar or at least complementary. It is especially here that the shoe pinches. Rather than conducting an investigation in the field, the RSZ mainly bases itself on information that it can find in all kinds of public databases: the Crossroads Bank for Enterprises (CBE), the Nacebel code, the social purpose of companies as shown in the Belgian Official Gazette, Dimona declarations, ... As soon as sufficient data points in the same direction, the RSZ deduces economic interdependence from this. Interrogating directors or employees or making a company visit then seems unnecessary.

However, companies are dynamic organizations that must continuously adapt to an ever-changing environment. The actual situation on the ground often threatens to lose out to the static information stored in all kinds of government databases. Late adjustments to previously stored government data risk having to be paid for in cash. Moreover, not all company data available to the government is equally useful for settling discussions about target group reductions, as will become clear later.

When examining the published case law, one cannot avoid the conclusion that the labor courts attach great weight to the information stored by the government, which they assume provides a true picture of actual business activity.

The judgment of the Ghent Labor Court of November 10, 2022 is therefore a welcome exception to this rather negative trend in case law for companies.

In this case , the RSZ deduced the existence of economic interdependence on the basis of the fact that the two (fashion) companies targeted had the same Nacebel code. The Nacebel code is the Belgian variant of a European-style nomenclature (“the Nace code”) that allows companies to be divided into sectors. The Nacebel code is assigned by the RSZ (RSZ statistics service) on the basis of the data provided by the company. It does not confer any rights on the companies nor does it impose any obligations on them. It mainly serves as a tool for drawing up economic statistics and overviews.

In the case on which the labor court had to rule, the first company was active as a producer of its own clothing line and a distributor through the retail trade, while the second company was a classic women's boutique. Both companies both had the same Nacebel code, which, according to the RSZ, showed that there was economic interdependence. The Labor Court does not agree with this and rules that both companies “((...) should not simply be lumped together for the simple reason that they are both active within the same (fashion) sector. Respondent (RSZ, ed.) blindly focused on some theoretical aspects, while the actual business activity should provide guidance.”

Any decision by the RSZ to cancel a target group reduction must be preceded by a thorough investigation. Merging information that the government already has can certainly play a role, but this form of data analysis does not absolve the RSZ of its obligation - especially in the event of a dispute - to conduct a more thorough investigation.

Finally: since January 1, 2022, the legislator has legally defined the concept of "technical business unit". It is the unit consisting of several legal entities, with a demonstrable social bond through one common person, regardless of his position within those entities and with a commonality that is expressed in a simultaneous or historical socio-economic interdependence or a simultaneous or historical technical business unit. referred to (Article 343 of the Program Act (I) of 24 December 2002 as introduced by the Program Act of 27 December 2021). The reservations formulated above remain unchanged after this change in the law.

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