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Recent developments in employment law

  • Belgium
  • Employment law

15-07-2019

  1. Introduction of a “mobility allowance”

Summary

Since 1 March 2019, employers can offer a mobility allowance as an alternative to a company car. A mobility allowance is intended to accommodate “greener” transport choices for employees and a more sustainable alternative, without increasing the employer's cost. When an employer decides to introduce this, there are three options available to every eligible employee, which may be combined. The options are:
(i) An environmentally friendly company car – at least as environmentally friendly as the car being exchanged;
(ii) Other more sustainable means of transport including: public transport, bicycles, car-pool or car-sharing services and;
(iii) A cash balance, payable to the employee at the end of the year.

Impact date

1 March 2019

Employer implications / actions needed?

Employers can unilaterally decide to introduce the mobility allowance but in doing so may attach conditions. The employer must inform the employee in advance of the method of calculation and the amount of the mobility allowance on offer.

  1. Protection against dismissal permissible under the New Belgian Companies Code

Summary

The new Belgian Companies Code reduces the current “ad nutum” principle by which company directors can be dismissed at any time without notice or indemnity from a mandatory requirement to an optional step. This change enables companies to offer their directors protection against dismissal (such as providing a notice period and/or compensation) via the articles of association or individual service agreements. 

Impact Date

From 1 May 2019

Employer implications / actions needed?

Consider an amendment to the company articles of association and/ or director contracts, if dismissal protection for directors is to be accommodated (following necessary approvals and processes).

Employer risk

Loss of competitive edge/ attractiveness as an employer if other organisations are introducing dismissal protection for directors and your organisation does not.

  1. Salary rise of 1.1% this year

Summary

The government has set the maximum salary increase for 2019-2020 at 1.1%. This means that the salaries for 2019-2020 cannot increase with more than 1.1 %. The automatic indexation and the baremic increases are guaranteed, which means that they are not taken into account for the calculation of the margin.

At sector level, the Joint Labour Committees can execute a sector CBA determining how the margin should be used within the companies resorting under their sector.

 If no CBA has been concluded at sector level, the company can decide how the use the 1.1 % margin for increases within the company.  

Impact date

2019-2020

Employer implications / actions needed

The following actions should be taken by employers:

(i) check whether a CBA is concluded in that regard at sector level;
(ii) if there is still some room for salary increases, limit the increases to 1.1 % total cost of salary increase.

Employer risk

Non-compliance may expose employers to the following risks:

(i)Claims from employees when measures imposed by the Joint Labour Committee(s) are not implemented in the correct manner; and
(ii)Criminal sanctions as a result of violating the salary norm if increases are granted on top of the 1.1 %.

  1. Electronic submission of work regulations

Summary

As from the moment a company employs one employee, it is obliged to draft work regulations. The employment regulations or an amendment thereto must be submitted to the competent department for the supervision of social laws within 8 working days of their entry into force.

From now on, all work regulations or amendments thereto can be submitted online. The identification system is the same as for the other online services (e.g. Tax on web), i.e. via the electronic identity card (eId) or via Itsme. Do note that this service is only available in Dutch, French and German.

The user has the possibility to upload the work regulations (or the amendment) and the appendices electronically in PDF-format.

In addition to uploading the documents, the online platform also offers the possibility to start a reconciliation procedure with the Labour Inspectorate, if there is a difference of opinion on the new or amended work regulations.

After uploading the documents, an acknowledgment of receipt is immediately received, as the documents are automatically forwarded to the correct internal services of the administration. The company does not also need to file the work regulations in writing.

Impact date

From 15 May 2019

Employer implications / actions needed

Work regulations can be submitted online.

  1. Salary scales on the brink of collapse

Summary

Summary of the judgment of 11 April 2019 of the labour tribunal of Leuven

The collective labour agreement dated 28 September 2009 concluded for Joint Labour Committee no. 200, in which the salary scales are determined on the basis of professional experience, contains an indirect age discrimination, as the collective labour agreement defines professional experience as any employment without any link to the function, which ignores the requirement laid down by the case law of the European Court of Justice , i.e. “professional experience which enables the employee to form his duties in a better manner”.

An indirect discrimination exists when an apparently neutral provision, criterion or practice is likely to be particularly detrimental to persons characterised by a particular protected criterion, compared to other persons. Indeed, in most cases, a younger employee has less professional experience than an older employee and will therefore be at a disadvantage compared to an older employee.

As a result of this indirect discrimination, the labour tribunal does not apply the Royal Decree declaring the collective labour agreement to be generally binding as the labour tribunal cannot apply a collective labour agreement of which the provisions conflict with mandatory provisions of laws, decrees and binding international treaties and regulations.

It goes without saying that each (sectoral) collective labour agreement will have to be examined individually to assess whether it constitutes an indirect age discrimination.

Employer implications / actions needed

As an employer, you should keep this in mind, however, further case law will need to clarify the present view – to be continued.

Employer risk

If the relevant collective labour agreement within the sector of the employer could be considered to include an indirect discrimination, the following scenarios are possible:

  • An employer who is a member of an employers’ organisation which is part of the Joint Labour Committee, is directly bound by the provisions of the sectoral collective agreement. This employer will have to pay to all his employees at least the minimum salary for the maximum professional experience within the relevant function category of the employee.
  • An employer who is not a member of an employers’ organisation which is part of the Joint Labour Committee may however deviate from the collective labour agreement by concluding an individual written agreement with the employee. In this case, only the national minimum wage will need to be respected. If no individual written agreement is concluded, the employee will be entitled to the minimum salary for the maximum professional experience within the relevant function category of the employee.

It goes without saying that, if this judgment is confirmed by other case law, the consequences for the employers will be immense.

Upcoming events:

  • Lunch seminar social elections 2020 on 11 September 2019 from 12 AM to 2 PM

Eversheds Sutherland Brussels

De Kleetlaan 12 A, 1831 Diegem

Subscription possible via kristelvandoren@eversheds-sutherland.be

  • Introduction to Belgian employment law training

Eversheds Sutherland, London

9.30 UK time – 4.30 UK time

The Belgian employment law training course is relevant to international HR managers and directors who have responsibility for employees in Belgium. It will also be useful to managers and directors who anticipate entering (or leaving) the Belgian market and who need to be aware of their responsibilities to their people. During this one-day training participants get an overview of the best practices and how to deal with issues.

Upcoming dates for this event:

  • November 21, 2019
  • June 30, 2020

For more information contact

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