Belgium: E-Commerce In The Distribution Sector: Possibility Of Night Work

E-commerce is omnipresent in Belgium where consumers increasingly purchase products online. Despite this development, Belgian companies have not benefited from the rise of the e-commerce market and hardly conduct any e-commerce activities. The biggest sticking point appears to have been the prohibition of night work, whereby orders, placed during the afternoon or at night, could not be delivered the following day.

Indeed, in principle, an employer can only employ employees at night when he can rely on one of the statutory exceptions to the prohibition of night work, namely:

  • The exception for certain activities or particular types of work.

    This exception does not exist for distribution activities.
  • The exception in the context of the "regime of high flexibility" (regime van grote flexibiliteit/ régime de grande flexibilité).

    Joint Committees 201, 311 and 312 did not apply for the establishment of such a system and thus, employers in the distribution sector could not apply this exception.
  • The exception provided by Royal Decree or for a particular type of work.

    There was no such Royal Decree for the distribution sector.

To remedy this situation, the Belgian government and the social partners of the distribution sector decided to provide for the possibility of night work for distribution activities by introducing a Royal Decree of 16 March 2016 whereby night work is accepted for the performance of all activities related to electronic commerce in those companies which fall under Joint Committees ("JCs") 201 (independent retailing), 202 (retailing in foodstuffs), 201.01 (middle-sized food business), 311 (large retail establishments) and 312 (warehouses)  (Koninklijk besluit van 13 maart 2016 waarbij nachtarbeid wordt toegestaan voor het uitvoeren van alle werkzaamheden verbonden aan de elektronische handel .../Arrêté royal du 13 mars 2016 autorisant le travail de nuit pour l'exécution de toutes les activités liées au commerce électronique ...) and Collective bargaining agreements ("CBAs") of 14 January 2016 on the introduction of night work for e-commerce activities, concluded in the JCs 201 (independent retailing), 202 (retailing in foodstuffs), 201.01 (middle-sized food business), 311 (large retail establishments) and 312 (warehouses) (Collectieve arbeidsovereenkomst van 14 januari 2016 betreffende het invoeren van nachtarbeid voor e-commerce activiteiten.../Convention collective de travail du 14 janvier 2016 relative à l'introduction de travail de nuit pour des activités e-commerce...).

The Royal Decree of 13 March 2016 introduces an exception for employees employed in companies within the distribution sector (JCs 201, 202, 311, 312) for the performance of all activities related to electronic commerce, insofar as this is justified by the nature of the services or activities.  The burden of proof in this regard falls on the employer.

In addition, under the Royal Decree of 13 March 2016, employers in the distribution sector (JCs 201, 202, 311, 312) are authorized to introduce a system for employees to work at night. Employers wishing to introduce such a system must, however, follow certain procedures. The type of procedure which must be observed depends on the desired timetable of the employer. A distinction is made between two different concepts: "night work" (nachtarbeid/travail de nuit) for work performed between 8 PM and 6 AM and "work regulation with night performances" (arbeidsregeling met nachtprestaties/régime de travail comportant des prestations de nuit) for work performed between midnight and 5 AM.

If the employer wishes to introduce a work schedule which includes night work, the work schedule must be included in the work rules using the normal modification procedure as provided for in the Law of 8 April 1965 on work rules (Wet van 8 april 1965 tot instelling van de arbeidsreglementen/Loi du 8 avril 1965 instituant les règlements de travail).

If the work is performed between midnight and 5 AM, a so-called "work regulation with night performances" and a stricter legal procedure, set out in Article 38 of the Labour Law of 16 March 1971 (Arbeidswet van 16 maart 1971/Loi du 16 mars 1971 sur le travail) and the CBAs of 14 January 2016, should be followed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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