Newsletter // March 22

With the "Labor Deal," our government has announced an agreement containing a number of measures aimed at increasing the employment rate in Belgium to 80% by 2030. This agreement is included in the preliminary draft law containing various labor provisions.

One of the announced measures is the “right” to a 4-day working week for full-time employees.

1. Who does the measure apply to? 

The measure applies to all employers to whom the provisions of the Labor Act apply, regardless of their size and to their employees.

2. What is it about? 

Every full-time employee is given the opportunity to request that their work performance be delivered weekly, spread over 4 days per week [1]. To facilitate this, the law allows the maximum daily working time (normally 9 hours) to be increased to 9:30. In companies where the weekly working time exceeds 38 hours (because working time reduction days are used), a collective labor agreement can even agree on a higher daily working time equal to the weekly working time divided by 4.

3. What procedures must be followed?

• collective proceedings

Before an employer can respond to an employee's request to work a 4-day week, they must amend their work regulations according to the normal procedure. They must stipulate that the maximum daily working hours for employees who will work a 4-day week will be increased to 9.5 hours, or higher if a collective labor agreement has been concluded for this purpose (see the situation mentioned above). The regulations must include the necessary schedules.

• individual procedure

The employee must submit a written request to work under the 4-day week system. This request must specify the period for which they wish to work under this system. However, this period cannot exceed 6 months.

The employer can either accept or reject the application. A rejection must be justified in writing and communicated to the employee within one month of the application. The bill does not provide for sanctions if the employer rejects the application without good reason.

If the employer agrees to the employee's request, a written appendix must be drawn up to the employment contract, which must contain a number of elements as a minimum.

Since the application can only be made for a maximum period of 6 months at a time, parties wishing to permanently install such a system in the company will have to complete the necessary paperwork (application and written agreement) twice a year.

4. Obligation to maintain and retain records

The employer must provide the committee for prevention and protection at work, or failing that, the trade union delegation, with a copy of each agreement concluded.

Furthermore, the employer must keep the employee's application and the agreement regarding the implementation of the 4-day workweek available at the location where the work regulations are kept and retain them for a period of one year after the end of the implementation period. Failure to comply with this obligation is punishable by a criminal penalty or a level 2 administrative fine (€200 to €2,000 per employee for whom the employer is in violation).

5. Special protection

An employee who requests to work during the four-day week may not be treated unfairly for that reason. Moreover, this employee may not be dismissed unless for reasons unrelated to their request. The draft law does not provide for a reversal of the burden of proof, so it remains, in principle, up to the employee to prove that they are indeed being dismissed based on their request. Nor is specific compensation provided for.

6. This measure is not yet applicable

The preliminary draft law containing various labor provisions has begun its approval process. Only after the National Labor Council and the Council of State have issued their opinions can it be submitted to Parliament. Therefore, the bill will likely not enter into force until the summer months. And, as mentioned, as long as your company's labor regulations have not been amended, this measure cannot be applied at the company level.

7. Bouncer: These employees are also entitled to 10 paid holidays

The paid holiday regulations provide that full-time employees are entitled to 10 paid holidays per year.

Even if employees work their full-time hours within this framework for 4 days, they will still be entitled to these 10 public holidays. This means that if the weekly working time is 38 hours and the employee therefore works 4 days of 9.5 hours, they are entitled to pay for 95 hours of paid public holidays, while their full-time colleague who works over 5 days is only entitled to pay for 76 hours of paid public holidays (or a difference of as much as 19 hours annually!)

Dirk Wijns, senior consultant
dirk.wijns@mploy.be

Antwerp Labor Court, Turnhout Division, January 10, 2022, unpublished

What you break is what you pay – on the protective compensation of prevention advisors and subsequent terminations of employment contracts.

An employer terminates an employee's employment contract with a notice period of three months and 18 weeks. A few weeks later, after the notice period had already begun, the employer and employee agree to terminate the employment contract by mutual agreement because the employee has found a new job.

When serving the notice of termination, the employer failed to consider the fact that the employee was also a prevention advisor. The law of December 20, 2002, on the protection of prevention advisors prescribes a special procedure when an employee who is a prevention advisor is dismissed. In that case, the employer must, among other things,.

• inform the employee by registered letter why he wishes to terminate the employment contract, and
• ask the members of the competent joint committee for permission to dismiss the prevention advisor prior to dismissal.

If an employee who is a prevention advisor is dismissed without complying with this procedure, they are entitled to a protective compensation equal to 2 or 3 years' salary (depending on the employee's seniority: less or more than 15 years).

In this case, the employer had not followed this procedure upon termination of the employment contract. However, when the employee approached him for payment of the protection allowance, the employer refused to pay it. His reasoning: the employment contract was terminated by mutual agreement following the notice of termination (at the request of the employee), so that the right to the protection allowance had lapsed.

The labor court disagreed with this reasoning. It ruled that the right to protective compensation arose when the employer terminated the employment contract without complying with the legally prescribed procedure. Consequently, the subsequent termination of the employment contract by mutual agreement does not nullify the right to protective compensation. Moreover, the labor court ruled that even unilateral termination by the prevention advisor himself after the employer's wrongful termination did not nullify the right to protective compensation. So, if you break the bank, you'll pay the bank.

When terminating an employment contract, always check whether the employee enjoys special protection. Failure to follow the correct procedures can be costly.

Eline Jacobs, lawyer
eline.jacobs@mploy.be

4 Jurisprudence – limited legal mandate of the social secretariat