The Labour Deal introduces some new elements with regards to night work in e-commerce.
E-commerce is having a less successful impact in Belgium than in its neighbouring countries. This is partly due to the earlier in the day enforcement of stricter rules on night work. In Belgium, these rules already apply as from 20h. For e-commerce, being able to process and ship orders in the shortest timeframe possible is essential. The tardier introduction of night work in other countries leads to tough competition and is a pull-factor for organising e-commerce activities abroad.
The labour deal tries to remedy this to some extent by easing the Belgian rules on night work within the e-commerce sector with two specific measures:
- The possibility to introduce night work based on a collective labour agreement signed by a single trade union;
- A one-time experiment where companies can voluntarily introduce night work by a simple amendment of the company’s work regulations and where employees can voluntarily enter the experiment.
Important to note in both cases is that the Labour Deal applies a narrower night work definition (20h – midnight) than what is normally used in the labour legislation (20h – 6h). Perhaps in this context, it would be more fitting to refer to such labour as ‘evening work’.
Finally, these new measures are applicable to e-commerce related activities, defined by the labour deal as the provision of all logistical and support services for e-commerce of movable goods. A relatively broad definition, therefore, which could apply to certain activities of many companies with an online sales component.
(re)introducing night work
The Labour Deal provides the possibility to introduce night work for e-commerce activities via a company-level collective labour agreement (CLA), in addition to the already existing possibility of introducing this form of night work via an amendment to the work regulations (following the ad hoc procedure for amending the work regulations). This is actually a reintroduction of a measure that had already been in force previously (2018-2019).
The implementation of night work via a CLA must only be approved by a single trade union (so foregoing the requirement to have all trade unions agree). Moreover if night work is introduced that way, the work regulations may be adapted without following the ad hoc procedure.
Experimenting night work
Employees and trade union organisations are often reluctant to the idea of night work. This is why the Labour Deal allows to conduct a temporary and voluntary night work experiment.
The experiment can only be launched once and for a maximum duration of 18 months. The unique character of this experiment applies both to the employer in the legal sense and at the level of the technical business unit.
Besides, a specific procedure must be followed. The employees’ representative bodies (ERB) must be involved (the works council, or failing that, the health committee, or failing that, the trade union delegation) or, in the absence thereof, the employees themselves. The involvement of the ERB does not however imply that they must give their permission. Notifications must also be done to the Social Inspection: the involvement of the ERB or employees must be demonstrated, and the duration of the experiment must be communicated. This notification also includes the reasons why the employer wishes to conduct such an experiment and the criteria that will be used for its evaluation. Finally, an evaluation report must be drawn up after the experiment together with the ERB (if any) and provided within 3 months after completion of the experiment to the Public Federal Service of Employment and the relevant joint committee.
Participation in this pilot project is on a voluntary basis. Employees wishing to take part must individually inform their employer in writing. The Labour Deal further specifies that employees must communicate their wish to participate in the proposed experiment. In other words, they do not have the power of initiative (but will be consulted in the absence of any ERB). Their request must be kept for the duration of the experiment and until one year after its completion.
In this experimentation context, the new time schedules may directly be included in the work regulations of the company without having to follow the ad hoc amendment procedure.
The Labour Deal provides for a double protection mechanism in the context of the night work temporary experiment: the employee’s request to participate may not give rise to unfavourable treatment, and the employee’s refusal to participate may not lead to dismissal. In this last instance, the employer will have to provide the termination reasons in writing upon request of the terminated employee (who had previously refused to participate in the experiment).
Although laudable in their intention, these protection mechanisms clearly lack the precision to be truly effective or, at the very least, to have a preventive character. Thus, there are no specific sanctions provided for unfavourable treatment of an employee who has requested to participate in the experiment. Similarly, there is no time limit for providing reasons for dismissal or a corresponding fine (as is the case for manifestly unreasonable dismissal), nor is there a lump-sum penalty mechanism in the event that dismissal is due to refusal to participate in the experiment.
In case of adverse consequences, the employee will therefore have to invoke the already existing protection mechanisms (eg, manifestly unreasonable dismissal), which are not specifically related to the night work experiment.
In addition to not being precise, this protection against dismissal can be easily circumvented. First of all, it is only provided in the experimentation context. Introducing night work via the reinstated “old system” will not trigger that protection, which may be understandable since the latter is based on collective negotiations leading to a company-level CBA. But it does not apply to night work introduced in a different way either, such as night shift work, which may discourage employers from using the system.
To somewhat accommodate the business needs of the e-commerce industry, two specific (and quite narrow) measures were taken.
The first one is actually a reintroduction of a measure that had been in place during the years 2018 and 2019 and was considered back then as a failed measure by the trade union organisations. It is therefore unclear whether this reinstated measure will be maintained in the long run.
The second one concerns the introduction of experiments in work organisation in the context of e-commerce and is strikingly characterised by little social dialogue (no CLA, no procedure for amending the work regulations), in a sector that is under constant pressure, whether in terms of wages or working conditions. The Labour Deal also remains quite vague both on the precise ERB’s involvement in the implementation of the experiment and on the contours of the employee’s protection in that context.
It is therefore no surprise that the National Labour Council has given a particularly negative opinion on all these measures, explicitly opposing their introduction. This call was ignored by the legislator. In practice, it seems however unlikely that these measures will be successful, and they will probably be countered to the extent possible by the trade unions.
Attorney at Law
Attorney at Law