Newsletter // March 22

With the “Labor Deal”, our Government has announced an agreement that contains a number of measures that should increase 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 Code 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 his work be performed weekly, spread over 4 days per week [1] . To make this possible, the law allows the maximum daily working time (normally 9 hours) to be increased to 9.30 am. In companies where the weekly working time is higher than 38 hours (because working time reduction days are used), a higher daily working time can even be agreed in a collective labor agreement equal to the weekly working time, divided by 4.

3. Which procedures must be respected?

• collective proceedings

Before the employer can answer an employee's request to work in the 4-day week, he must adjust the work regulations in accordance with the normal procedure. He will have to determine that the maximum daily working hours for employees who work in the 4-day week system will be increased to 9.5 hours or higher if a collective labor agreement has also been concluded about this (see the above situation). The regulations must contain the necessary timetables.

• individual procedure

The employee must submit a written request to work in the 4-day week system. This application must state the period during which he wants this system. However, this period cannot be longer than 6 months.

The employer can agree or refuse the application. The employer must provide written reasons for a refusal and communicate it to the employee within one month of the request. The bill does not provide for sanctions if the employer refuses the application without serious reasons.

If the employer agrees to the employee's request, a written appendix to the employment contract must be concluded that must contain at least a number of elements.

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

4. Obligation to keep and store

The employer must provide the committee for prevention and protection at work, or in their absence the trade union delegation, a copy of every concluded agreement.

In addition, he must keep the employee's application and the agreement on the application of the 4-day working week available at the place where the work regulations are kept and, after the end of the application period, keep it for a period of 1 year. Failure to comply with this obligation is sanctioned with a criminal penalty or with an administrative fine of level 2 (200 to 2000 euros per employee for which the employer is in violation).

5. Special protection

The employee who asks a question about performance during the 4-day week may not be treated disadvantageously for that reason. Moreover, this employee may not be dismissed unless for reasons that are foreign to his request. The draft does not provide for a reversal of the burden of proof, so that in principle it remains up to the employee to provide proof that he is indeed being dismissed because of his request. Nor is any specific compensation provided.

6. This measure does not yet apply

The preliminary draft law containing various labor provisions has started its approval process. Only after the National Labor Council and the Council of State have ruled on it can it be submitted to Parliament. This bill will therefore probably not come into force until the summer months. And, as mentioned, as long as the employment regulations of your company have not been amended, this measure cannot be applied at company level.

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

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

Even if employees perform their full-time work in 4 days within this framework, they will be entitled to these 10 public holidays. This means - if the weekly working hours are 38 hours and the employee therefore works 4 days of 9.5 hours - that he is entitled to wages for 95 hours of 'paid public holidays', while his full-time colleague delivers those services, spread over 5 days. is only entitled to wages for 76 hours of paid public holiday (or a difference of no less than 19 hours on an annual basis!)

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

Antwerp Labor Court, Turnhout department January 10, 2022, not issued

Breaking the bank means paying the price – about the protection compensation of prevention advisors and subsequent terminations of the employment contract.

An employer terminates the employment contract with an employee with a notice period of 3 months and 18 weeks. A few weeks later, after the notice period had already started, 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 did not take into account the fact that the employee was also a prevention advisor. The law of 20 December 2002 on the protection of prevention advisors prescribes a special procedure when the employee prevention advisor is dismissed. In that case, the employer must, among other things:

• inform the employee by registered letter why he wants 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 prevention advisor is dismissed without complying with this procedure, he is entitled to a protection 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 when terminating the employment contract. However, when the employee approached him for payment of the protection compensation, the employer refused to pay it. His reasoning: the employment contract was terminated by mutual agreement after termination (at the employee's request), so that the right to protection compensation had lapsed.

The labor court did not follow this reasoning. She ruled that the right to protection compensation arose when the employer terminated the employment contract without complying with the legally prescribed procedure. The subsequent termination of the employment contract by mutual agreement therefore does not nullify the right to the protection compensation. Moreover, the labor court ruled that even a unilateral termination by the prevention advisor himself after the incorrect termination by the employer did not nullify the right to protection compensation. Breaking a game means paying a game.

When terminating the employment contract, always check whether the employee enjoys special protection. Failure to follow the correct procedures can cost you dearly.

Eline Jacobs, lawyer
eline.jacobs@mploy.be

4 Judiciary – limited legal task of the social secretariat