European Union: Employment Law Reforms Following Implementation Of Summer Agreement

Last Updated: 27 March 2018
Article by Catherine Longeval

The so-called Summer Agreement (the "Agreement") which includes ambitious reforms to create jobs, increase purchasing power and promote social cohesion has been the subject of heated debates in the Federal Parliament and in the media. It was initially unclear how these measures would be implemented (see VBB on Belgian Business Law, Volume 2017, No. 9, available at www.vbb.com). However, the measures contained in the Agreement have now been partially incorporated into the Programme Law of 25 December 2017 (the "Programme Law"). The Programme Law entered into force on 1 January 2018 and contains the following noteworthy rules:

Extension of scope of flexi-job status

A flexi-job is a form of occasional work, enabling persons who meet specific requirements to take up an additional job in the catering industry under favourable conditions. The scope of flexi-jobs has now been expanded from the catering industry to the sectors governed by the following Joint Committees ("JC"): JC No. 118.03, JC No. 119, JC No. 201, JC No. 202, JC No. 202.01, JC No. 302, JC No. 311, JC No. 312 and JC No. 314.00.

Implementation of a profit premium (winstpremie/prime bénéficiaire)

Employers may decide to grant their employees a percentage of their profits as a bonus and have to choose between paying an equal amount to all employees (identical profit premium) or a variable amount per category of employees (categorised profit premium). The profit premium must not be granted to replace another component of an employee's remuneration and is subject to a particular social security and tax treatment. Moreover, the total amount of the premium must never exceed 30% of the total yearly remuneration.

Non-recurring performance-based bonus provided by Collective Bargaining Agreement No. 90 ("CBA No. 90")

Companies that initiate the information and consultation procedure in relation to a collective redundancy coupled with a closure of the undertaking will be excluded from the scope of CBA No. 90.

Accountability contribution (responsabiliseringsbijdrage/cotisation de responsabilisation)

Part-time employees who are entitled to a guaranteed income have the right to ask their employer for a full-time job or another part-time job. In case of such a request, the employer is obliged to extend the employment of the part-time employee if there is more work available within the company. An accountability contribution of EUR 25 per month for each part-time employee at issue will be imposed on the employer who fails to respect this obligation.

Simplification of procedure to introduce e-commerce activities at night and on Sundays

Companies can introduce e-commerce activities at night and on Sundays either by concluding a company CBA with only one representative trade union organisation, or by modifying their work rules in accordance with the applicable procedure.

Increase of special social security contribution on supplementary pension ("Wijninckx-contribution")

This social security contribution, which has been increased from 1.5% to 3%, requires employers to pay additional taxes when the supplementary pension payments of the employer for any of its employees exceeds EUR 30,000 (indexed on a yearly basis).

The introduction of an "activation contribution" (activatiebijdrage/cotisation d'activation)

The activation contribution was introduced in order to discourage companies from exempting older employees from work while (partly) maintaining their salary. The amount of the activation contribution will depend on the age of the employee at the moment on which he/she becomes exempted from work.

On 15 January 2018, Parliament adopted a second law incorporating additional measures of the Agreement, i.e. the Law regarding Various Provisions in Relation to Work (the "Law of 15 January 2018") (Wet van 15 januari 2018 houdende diverse bepalingen inzake werk/ Loi portant des dispositions diverses en matière d'emploi).

The Law of 15 January 2018 was published on 5 February 2018 and contains the following noteworthy items:

Law regarding Collective Bargaining Agreements (CBA's)

The Law of 15 January 2018 provides for a guaranteed continuation of the wage and working conditions for employers and employees in case of a transfer from one Joint (sub) Committee ("J(S)C") to another. The conditions will continue to apply in the following events: (i) a change in the scope of the competent J(S)C; (ii) the abolition of the competent J(S)C; or (iii) the creation of a new joint JC.

This guarantee of continuity of sectoral wage and employment conditions applies to employees employed before the transfer as well as employees recruited after the transfer, until a special CBA is entered into on this subject by the new J(S)C.  This should happen before 1 January 2023.

Economic Unemployment

The performance of the employment contract can only be suspended for economic reasons if the lack of work is independent of the employer's will. As a result, if the employer outsources the work to third parties, the performance of the employment contract cannot be suspended for economic reasons. Pursuant to the Law of 15 January 2018, the non-compliant employer must pay normal compensation to the employee for the days during which it outsourced the work that is normally performed by the employee.

Electronic Signature for Conclusion of Employment Contracts and Electronic Archiving of Social Documents

As the rules governing the conclusion of electronic employment contracts is too limited in the light of the requirements of the eIDAS Regulation (only an employment contract signed by means of the electronic identity card is considered equivalent to a paper employment contract), Parliament extended the circumstances under which an employment contract can be signed electronically.

The electronically signed employment contract will be equated to a paper employment contract, signed by means of a handwritten signature, on condition that the electronic signing takes place:

  • by a qualified electronic signature or a qualified electronic seal that meets the conditions of the eIDAS Regulation; or
  • by another electronic signature that ensures the identity of the parties, their consent to the content of the agreement and the continuing integrity of that agreement. In the event of a dispute, the burden of proof lies with the employer who must demonstrate that the electronic signature satisfies these requirements.

In addition, the electronically signed employment contracts and specific social documents can be stored and sent electronically as part of an individual employment relationship. This is to be carried out either by an electronic archiving service or by an employer who operates such a service.

The date of entry into force of these provisions will be determined by Royal Decree and will depend on the availability on the market of qualifying services.

Replacement of Incapacitated Employee who Gradually Resumes Work

The Law of 15 January 2018 introduces the possibility of partially replacing an incapacitated employee by an employee with a replacement contract if, upon the advice of the advising physician of his health insurance fund, the first employee resumes work on a part-time basis.

Mystery Calls

Social inspectors are given specific powers to identify "discriminatory practices" (e.g. discrimination in recruitment) through data mining and data matching techniques. The social inspectors will be able to carry out anonymous tests at companies where there appear to be objective indications of discrimination. Mystery calls are intended to reveal instances of discrimination by the suspected perpetrator, but not to provoke or reinforce them. In order to prevent a witch hunt, the prior permission of the Labour Auditor or the Public Prosecutor will be a condition for the use of mystery calls.

Outplacement

It is already the rule for employees with a notice period of at least 30 weeks who receive an indemnity in lieu of notice, that 4 weeks' salary is deducted from their indemnity in lieu of notice as compensation for a right to outplacement (current system). For employees for whom outplacement provides no added value (i.e., employees whose state of health prevents them from participating in the outplacement), the employer must no longer offer outplacement. These employees will therefore be entitled to the full indemnity in lieu of notice.

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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