Employment law: more flexibility with regard to working time

The Belgian Minister of work, Mr. Kris Peeters, intends to reform the employment legislation, starting with the rules on working time. These rules date back to the 80’s and leave little room for a flexible organisation of work, both for employers and workers.

Although no legislative proposal has been drafted yet, on 9 April 2016, the government agreed on an action plan regarding the modification of the labour law. The measures the government agreed on, are now being discussed with the so called group of 10, composed of employers’ organisations and workers’ organisations.

According to the action plan of the government, certain measures will be directly applicable to all employers, while other measures will be optional and will have to be activated on the level of the Joint Committees (‘Paritaire Comités’ / ‘Commissions Paritaires’). Hereunder, we will give a brief description of the planned measures. However, these measures did not enter into force yet and are still being discussed by the social partners.

Directly applicable measures

The following measures would be directly applicable to all employers:

1. Reform of the working week

Current legislationUnder the current legislation, the average weekly working time is 38 hours. The period of reference taken into account in order to determine whether this average has been respected is in principle one trimester. Under certain strict conditions, that period of reference can be brought to one year.   

ProposalIn order to give more flexibility to workers, the government proposes to determine that the weekly working time must be respected on a yearly basis. Consequently, workers would be able to work more than 38 hours some weeks and less than 38 hours other weeks, provided that:

  • The daily working time does not exceed 9 hours;
  • The maximum weekly working time does not exceed 45 hours;
  • The average weekly working time does not exceed 38 hours on a yearly basis;
  • When workers have performed 143 overtime hours, they may not perform any additional overtime hours before having taken compensation leave.

2. Credit of voluntary overtime hours

Current legislationUnder the current legislation, overtime work is only permitted in exceptional circumstances as determined in the Labour Act of 16 March 1971. (For instance: if the overtime is necessary due to an accident that took place or in order to prevent an accident, if the overtime is necessary due to an unexpected circumstance and with the agreement of the trade union delegation, in case of exceptional increase of work and with the agreement of the trade union delegation, etc.).

As a consequence, workers and employers may not agree that a worker will perform overtime on a voluntary basis, in the absence of such exceptional circumstances.

ProposalWorkers would be allowed to perform 100 overtime hours each year, on a voluntary basis, in agreement with the employer and without any justification. These hours would be remunerated the same way as overtime is remunerated now, including the overtime supplement.

These measures would be completed with the creation of a so-called “career savings account”, which would allow workers – in agreement with their employer – to adapt the intensity of their career to their needs, by saving time or salary components via such an account. The account could be credited f.i. by the payment of the performed overtime or by the valorization of training days attended by the workers.

3. Training of workers

The government also proposes to oblige employers to invest more in the training of their workers. The target is that employers will have to provide 5 days of training per year per full-time equivalent worker. Specific measures would apply for SME’s. The time spent on the trainings by the workers would be remunerated.

4. Occasional work at home

Current legislationCurrently, it is not forbidden to foresee in an employment contract that a worker will (either fully or partially) perform his work at his home. However, occasional work from home is not covered by a specific legislation.

ProposalThe government wishes to determine specific rules in order to make occasional work from home possible. In light thereof, the rules on the mandatory industrial accident insurances and on the reimbursement of costs would be adapted.

Optional measures – to be implemented on the level of the sector

Apart from the above mentioned measures that would apply to all workers, the government also wishes to introduce some optional measures. It will be up to the Joint Committees to determine in each sector whether these optional measures will be implemented or not. The most important optional measures are: 

  1. Possibility for the sectors to determine the maximum number of working hours per day at 11 hours (instead of 9) and the maximum number of working hours per week at 50 hours (instead of 45). This may not affect the average weekly working time (38 hours/ week in most sectors) that must be respected on average over a period of reference.
  2. Possibility for the sectors to determine that the average weekly working time must be respected over a period of reference of max. 6 years instead of 1 year (in sectors with a production process of more than a year).
  3. Possibility to increase the number of months that workers can benefit from time-credit with a motive (+1 month in case of time-credit for palliative care and +3 months in case of time-credit for the caretaking of a child or family member).
  4. Possibility to simplify part-time work.
  5. Possibility to allow workers to donate holidays that they have not yet used to other workers who have a child that is seriously ill.
  6. Determination of the possible ways to credit the “career savings account” (see above).
  7. Possibility to adopt rules regarding flexible working hours. Regimes of flexible working hours, are regimes whereby a worker may chose at which hour he starts to work (within a certain time frame) and at what time he ends work. Please note that a lot of companies already have flexible working hours and the social inspection tolerates this under certain conditions. However the law does not yet regulate flexible working hours.

As mentioned above, these measures are not yet the object of a draft legislation. Moreover the government is still negotiating these measures with the social partners, i.e. the group of 10. Nonetheless, it is very probable that a law will be adopted later this year or in 2017. This law will undoubtedly contain some or all of the above-mentioned measures, which might be slightly modified. It will in any case, be an important modification to the labour law and specifically to the regulation on working hours.

Emmanuel Wauters & Hanne Craninx