Many companies allow staff to work from home for one or more days per week. Most of these workers operate from home using a computer, phone and/or other communication tools.
As home workers rely on a computer and other communications technology, they fall within the scope of Collective Bargaining Agreement (“CBA”) No. 85 of 9 November 2005 with regard to telework (Collectieve arbeidsovereenkomst nr. 85 van 9 november 2005 betreffende het telewerk/Convention collective de travail n° 85 du 9 novembre 2005 concernant le télétravail).
Telework is an organisational form for performing work, that relies on information technology in the context of an employment contract in which work which could also be performed at the employer’s premises is carried out away from those premises on a regular basis.
This requires that specific mandatory provisions have to be incorporated into the employment contract. This must be done, at the latest, by the moment when the telework actually starts.
These mandatory provisions relate to:
- the frequency of telework and the possible days on which telework is performed and on which the employee is supposed to work at the employer’s premises;
- the moments or periods during which the teleworker can be reached and by which means;
- the circumstances in which the teleworker can request technical support;
- the rules according to which the employer reimburses or pays the home worker’s expenses;
- the conditions and rules with regard to the employee’s return to the employer’s premises, the notification period and/or the duration of telework and how this duration can be extended.
In addition to these mandatory provisions, the employer is also responsible for taking the appropriate steps to ensure the protection of data used and processed by the teleworker for professional purposes. The employer should inform the teleworker of all relevant legislation and company rules concerning data protection.
If there is no written agreement on telework, the teleworker has the right to perform his/her activities on the premises of the employer or return to these premises at the moment of his/her own choosing. There is no other specific civil penalty.
In addition, Article 56 of the Law of 5 December 1968 with respect to Collective Bargaining Agreements and Joint Committees (Wet van 5 december 1968 betreffende de collectieve arbeidsovereenkomsten en de paritaire comités/Loi du 5 décembre 1968 sur les conventions collectives de travail et les commissions paritaires) provides that an employer who commits an offence against a generally binding CBA can be punished with, until 1 July 2013, a prison sentence from 8 days up to 1 month and with a fine between EUR 143 and EUR 2,750 (per infringement), or with one of those sanctions only. As of 1 July 2013, these sanctions will be replaced by an administrative fine between EUR 60 and EUR 600 per employee, pursuant to Article 189 of the Social Penal Code (Sociaal strafwetboek/Code pénal social).
Moreover, a failure to establish in writing the terms of the telework can lead to disputes with staff, the insurance company and even the department of Social Inspection.
- If the frequency and timing of telework is not defined, this may become problematic where the employee has an accident at home. The question will arise whether this accident qualifies as a work accident or as an accident during the private time of the employee. The employer could avoid such issues by opting for a 24/7 insurance policy with the insurance company.
- The employer is responsible for providing, installing and maintaining the equipment necessary for regular telework unless the teleworker uses his/her own equipment. In the latter case, the employer should compensate for the costs directly caused by the telework. If no such compensation is foreseen, the teleworker can claim adequate compensation, which in turn can lead to protracted discussions in the absence of a written agreement. If no compensation is foreseen, a forfeited amount of 10% of the remuneration is due, except if the employee is able to prove higher costs.
- If the employer does provide for compensation for the costs associated with telework by way of a monthly lump sum, the employer has to make sure that this amount is in line with the administrative instructions of the National Social Security Office (RSZ/ONSS). In these instructions a lump sum cost allowance of up to 10% of the gross remuneration (limited to the part corresponding to the telework) is accepted. Above this amount, the employer has to prove that the allowance is justified. However, the Social Inspection might challenge the payment of “costs for telework” in case there is no formal agreement on telework that provides for the cost allowance. This could lead to a re-qualification of the costs into remuneration, which, in turn, could result in additional costs for the employer.
A company grants a lump sum cost allowance of EUR 200/month for telework to 10 employees. The department of Social Inspection challenges the nature of this allowance as no formal contract on telework was concluded detailing the amount and extent of the cost allowance.
Social security risk = [(EUR 200 x 10 employees x 12 months) x 48.07% x 3 years] + 10% lump sum penalty = EUR 38,071.44 + interests + possible criminal sanctions