Traditionally, Belgian labour law distinguishes between two forms of telework, namely structural telework, regulated by the Collective Labour Agreement n° 85, and occasional telework, regulated by the Act on Workable and Agile Work. Since the start of the Covid-19 pandemic, a third category has been added, namely 'Covid telework', which was, at a certain point, recommended but has now been made compulsory again by the government. Until recently, this ‘Covid telework’ was a 'sui generis' regime for which no legal framework had been developed. However, the National Labour Council has now concluded a Collective Labour Agreement n° 149 that creates such a legal framework.
This new CLA n° 149 does not apply to companies that already had a structural or occasional telework regime in place before 1 January 2021 that was included in either a CLA, an individual agreement or a telework policy.
For companies that do not yet have a structural or occasional telework regime in place, CLA n° 149 includes a reference framework to make the necessary arrangements on Covid-telework within the company, as well as a number of obligations for well-being at work concerning telework.
This newsflash gives an overview of the new CLA’s key points.
Which employers are affected by the new CLA?
The new CLA’s provisions only apply to companies that did not have a structural or occasional telework regime in place on 1/1/2021.
CLA n° 149 specifies that it does not apply to ‘existing agreements’ in the company concluded before 1/1/2021, including a CLA, an individual agreement or a telework policy that was implemented within the company with due regard for the rules on social dialogue.
It is thus clear that the new rules do not apply to employers who already have a CLA or individual agreement on structural or occasional telework in place, or who already have a telework policy drawn up in consultation with the employee representatives within the company’s bodies. Therefore, such employers do not have to do anything.
But what about companies that do not have consultative bodies and have communicated a policy for structural or occasional telework to their employees by e-mail? Are they also excluded from the new rules? In our opinion they are, although CLA n° 149 is not entirely clear on this point.
Also, more importantly: what about employers who do not have a regime for structural or occasional telework in place, but who have formalised a 'sui generis' Covid telework regime in an agreement with their employees before 1/1/2021?
Based on a literal reading of CLA n° 149, which only refers to existing regimes on structural and occasional telework, such employers would thus fall under the new regulation. It can be questioned whether this was indeed the social partners’ intention, given they want to encourage employers who “do not yet have a formal telework policy to make the necessary arrangements”. Until more clarity is provided on this point, it is advisable for such employers with a ‘Covid telework regime’ in place to comply with the new CLA’s provisions.
Employment conditions of the ‘Covid-teleworker’
1. What arrangements can or must be made?
In principle, the ‘normal’ working conditions apply to teleworkers as they do in the workplace.
However, CLA n° 149 provides that the employer can work out a number of additional, specific working conditions for ‘Covid teleworkers’ and make arrangements about this with the teleworkers. For the provision of equipment and additional connection costs, arrangements must be made.
The arrangements that the employer can make are:
- Any additional or different terms and conditions of employment as compared to the situation where the employee works at the company site.
- Rules for monitoring the results to be achieved and/or evaluation criteria.
Also when the employees are teleworking, the employer has the right to monitor work performance, but this may not be ‘continuous’ monitoring. In doing so, the employer must respect the employee's privacy.
Moreover, CLA n° 149 explicitly stipulates that the same workload and performance standards apply to the teleworkers as those applied on the company premises.
- Arrangements for any specific working time schedules for telework.
The teleworker is free to organise his/her own work within the framework of the working hours applicable in the company.
Specific working time schedules for telework may be agreed upon. If this does not happen, then the teleworker works on the basis of his/her ‘normal’ working time schedule.
- Periods during which the employee must be reachable or can be unavailable.
To reconcile telework and private life, agreements can be made regarding the periods during which the teleworker must be reachable and periods during which he/she may be unavailable. The means by which the teleworker can be reached can also be specified (phone, e-mail, Teams, Skype, etc.).
The arrangements that the employer must make are:
- The provision of the necessary equipment (e.g. a laptop) and technical support, or, if the employees use their own equipment, the employer’s reimbursement of costs.
- Additional connection costs (telephone and internet).
Contrary to what is the case for CLA n° 85 on structural telework, which explicitly states that the employer must reimburse the professional costs of the connections and communication related to telework, CLA n° 149 on ‘Covid telework’ only states that ‘arrangements’ must be made about this point. In theory, it thus seems that parties could agree that no such reimbursement is to be paid.
Moreover, CLA n° 149 states that when determining the employer’s obligations, any additional compensation already paid by the employer to the teleworkers in the context of the Covid-19 crisis may be taken into account in this respect.
However, it cannot be excluded that an employee could still claim a reimbursement of additional communication costs on the basis of the employer’s general obligation to provide the tools and materials necessary for the execution of the work (Article 20 Employment Contracts Act). This was previously interpreted by the Employment Ministry on its website as an obligation for the employer to provide the necessary equipment and to reimburse the communication costs of the ‘Covid teleworker’, albeit with reference ‘by analogy’ to CLA n° 85 on structural telework whilst there is now a specific CLA on 'Covid telework' that does not include such a specific obligation.
2. What do employers need to specifically do?
- The CBA n° 149 includes that the employer must inform its teleworking employees of the following elements:
- Any additional or different working conditions related to the Covid telework.
- The way the employer monitors the results and/or the performance of the telework.
- The rules that the employee must respect to guarantee data security, in particular the restrictions and penalties regarding the use of IT equipment and tools.
- The arrangements made relating to Covid teleworkers’ working conditions (see point 1) must be formalised by the employer in one of the following ways:
- by company CLA
- by amending the work rules
- by entering into an individual agreement
- by drafting a telework policy with due regard for the social dialogue principles
The employer must also explicitly communicate these arrangements to the employees, for example via the intranet, e-mail or a digital meeting.
- Employers with consultative bodies should also provide workers' representatives with the necessary time and resources to communicate with ‘Covid teleworkers’. In particular, they should be provided with digital tools (e.g. digital notice boards) to do so.
What about well-being at work in the case of Covid-telework?
CLA n° 149 also sets out the employer's obligations concerning well-being at work in the framework of Covid-telework.
The CLA provides for a number of concrete prevention measures, as well as an information obligation for the employer.
1. Prevention measures
The employer must:
- Implement a policy on well-being at work for telework that must be established with due regard for social dialogue within the Health & Safety Committee (or in its absence, the trade union delegation, or in its absence, with the employees).
This policy must be based on a multidisciplinary risk analysis that also takes into account the psychosocial dimension and the specific health aspects related to telework.
- Take appropriate measures to maintain the connection with the colleagues and the company (e.g. Covid-proof organised return moments).
2. Information to be provided by the employer
The employer must provide the ‘Covid teleworkers’ with the following information:
- The employer’s prevention policy concerning telework, which may relate to adjustments to the workplace, the proper use of display screens and available technical and IT support.
- The possibility of informal or formal psychosocial intervention and spontaneous consultation with the occupational doctor.
- The contact details of the immediate superior, the competent prevention advisors (safety at work, occupational medicine and psychosocial risks at work) and of any confidential counsellor.
- Information on the modalities and specificities of telework and, as the case may be, as supplemented by training.
For how long will CLA n° 149 apply?
CLA n° 149 has been concluded for a fixed term and will expire on 31 December 2021.
Should the obligation to telework during the Covid-19 pandemic, imposed by the government, or the government's recommendation to this end, be lifted before 31 December 2021, then this CLA will already cease to have effect at that time.