E-commerce towards flexibility!

In Belgium, night work, i.e. work undertaken between 8pm and 6am, is prohibited. The legislator can, nevertheless, stipulate exceptions to this prohibition.

According to the Government, e-commerce activities on Belgian territory are under tremendous pressure from foreign e-commerce companies that can work under more flexible wage and employment conditions. E-commerce is a collective term for all transactions that are handled digitally.

As of 2017, companies in all sectors can introduce night work for logistic and support services related to e-commerce. However, to be elegible to benefit from this e-commerce exception regime, strict procedures must be  followed.

The Draft Program Law of 6 November 2017 aims to simplify certain aspects of these procedures.

The definitive simplification entails an amendment of article 38 § 1 of the Labour Code of 16 March 1971 in such a way that companies with a trade union delegation can henceforth enter into an ‘ordinary’ collective labour agreement to introduce e-commerce related night work that takes place between midnight and 5am. This means that, from now on, the agreement can be concluded with one representative employee’s organization, whereas previously all organizations represented in the trade union delegation had to sign it. The legislator thus seeks to avoid situations where a single employee’s organization blocks the entire process by means of a veto.

The temporary simplification creates a special framework for night work and also for Sunday work for services related to e-commerce in movable goods (e.g. the online sale of insurance products is excluded).

Companies, with or without a union delegation, wanting to introduce (i) night work between and/or outside midnight and 5am or (ii) Sunday work can do so through:

a.  the conclusion of an ordinary collective agreement with one representative employee’s organization, where the new regulation can be directly inserted into the work rules as from the registration of this collective labour agreement at the registry of the competent authorities; or
b.  the amendment of their work rules in accordance with the usual procedure.

These temporary simplifications will only be in force from 1 January  2018 until 31 December  2019. The Government will at a later stage evaluate this regulation.  

Coralie van Durme
Junior Associate, Brussels

Sophie Berg
Partner, Brussels

Gaël Chuffart
Partner, Brussels