The transposition of the Directive 2019/1152 on transparent and predictable working conditions in the European Union (the Directive) is not yet complete in Belgium: although the deadline for transposition was set by the European Union (EU) on 1 August 2022, the draft bill was only filed in the Belgian House of Representatives on 7 July 2022 (the Draft bill). It is then highly likely that Belgium will not meet the EU deadline.
However, the Draft bill already provides the elements that should be considered as of today since the law is expected to come into force in the next few months and foresees that employees whose employment agreement started before the date of entry into force of the (future) law will be able to avail themselves of the new rights enshrined.
In this context, we examine the (future) new obligations for employers (I.).
In accordance with the Directive, the Draft bill provides, on the one hand, for an improvement in transparency by imposing an information obligation on employers and a series of elements which will henceforth have to be the subject of prior written communication to the employees (I.1.). On the other hand, the Draft bill imposes new obligations aimed at improving the predictability of working conditions (I.2.). Finally, the Draft bill foresees to protect these new obligations by offering employees specific protection against dismissal and “adverse action” (I.3.).
We will conclude this newsletter with the main points of attention that we recommend keeping in mind as of 1 August 2022 (II.).
I. TRANSPARENCY AND PREDICTABILITY OBLIGATIONS
I. 1 TRANSPARENCY OBLIGATION
In accordance with the Directive, the employers are obliged to inform employees of the essential aspects of the employment relationship (e.g. the main function of the employee, the agreed remuneration and benefits, the working regime of the employee, etc.). However, the Belgian legislator has opted not to increase the administrative burden on employers. Therefore, employers will be allowed to communicate this information via already existing documents (the employment agreement and/or the work rules) – even though it remains possible for the employer to mention these essential aspects in another document.
Regardless of the type of employment agreement, this information is to be mentioned in a written or electronic document handed over by the employer to the employee at the latest on his/her first day of work. The employer is also required to keep proof of this transmission. For example, in the case of full-time and open-ended agreements, which do not have to be in writing under Belgian employment law, the Draft bill does not impose a new obligation to draw up a written contract, but it does however require the employer to provide written information.
In practice, since it is customary to conclude all types of employment agreements in writing before the beginning of work and to hand over a copy of the work rules when signing the employment agreement (acknowledging receipt of the work rules in the employment agreement), the required information is already communicated, and the “new” obligation is thus already fulfilled.
I. 2 PREDICTABILITY OBLIGATION
The Belgian legislator, in accordance with the Directive, also provided for the following (future) specific obligations:
a. Side employment
The employer is prohibited, apart from legal exceptions, from restricting the employee’s choice of employment outside the working hours with that employer, or from applying any unfavourable treatment to the employee because of such side employment.
b. Variable hours and predictability
When the employment agreement provides that the employee is working variable hours, the time limit for the communication of the individual schedule by the employer to the employee is increased to 7 working days in advance (instead of 5).
The employee will be entitled to refuse to perform the work if he/she has not been notified of the variable working hours within this period or if the working hours are set outside the schedule applicable to him/her. If the employer cancels a scheduled and validly communicated work period between the moment of communication (7 working days before the work period) and the date of the work period, the remuneration for the cancelled work period must be paid to the employee.
c. Mandatory trainings
When a company employs employees, whose function requires compulsory training and for whom the law provides that it is the employer’s obligation to organise such training, that employer’s work rules should state that the costs of the training are borne by the employer and that the training time is deemed to be working time.
d. Transition to a more secure form of employment
An employee who does not have predictable working conditions in the company may request a more secure function after 6 months of employment. For example, a variable hour employee could request a position with a fixed working schedule.
The employer then has a period of 1 month (extended by a further month for companies with less than 20 employees) to respond to the employee and communicate his justification.
e. Criminal law consequences
Violations by the employer of these new rights established by the legislation on transparent and predictable working conditions are now part of the Social Criminal Code.
The Draft bill provides for two levels of sanctions for infringements of the new legislation: level 2 sanctions (i.e., administrative or criminal fines ranging from EUR 200 to EUR 4,000 multiplied by the number of employees for whom the employer is found to be in breach) and/or level 3 sanctions (i.e. administrative or criminal fines ranging from EUR 400 to EUR 8,000 multiplied in the same way).
I. 3 NEW PROTECTION AGAINST DISMISSAL OR ADVERSE ACTION
In case of violation by the employer of the employee’s rights under the legislation on transparent and predictable working conditions, the employee will have the right to file a complaint within the company or department where he/she is employed or with the social inspectorate or the relevant court. The employee who will file such a complaint will be given protection against dismissal or “adverse action”. This means in practice that the employer will not be able to dismiss or take any “adverse action” against this employee, unless the dismissal or action is related to other reasons.
This protection lasts for 12 months from the date of the complaint. This implies that an employer who wishes to dismiss or take an adverse action against the employee during this period must be able to demonstrate the other reason(s) supporting his decision. Otherwise, the employee can claim a lump sum compensation equivalent to 6 months’ pay.
II. OUR MAIN RECOMMENDATIONS
Although the impact of the legislation on transparent and predictable working conditions will certainly be very limited in practice, we recommend that employers:
i) ensure that they inform employees by checking the list of new information to be transmitted and keeping proof of this complete and prior transmission of information;
ii) for employers employing variable hours employees, ensure that the individual working schedule is communicated at least 7 working days in advance (instead of 5 days);
iii) ensure that any request for more secure employment is addressed within one month;
iv) monitor employees’ complaints to ascertain whether they benefit from the (future) protection against dismissal.
We will, of course, inform you when the Directive has been transposed and of any amendments in the final version of the future Belgian legislation.
Our team would be delighted to address any queries you may have in relation to the various measures of the Directive.
Vincent BUSSCHAERT - Partner
Florence DELCHEVALERIE - Associate