1 INTRODUCTION
1. The previous federal government had its "jobs deal" in 2019, but the current De Croo government also wants to make its mark on employment law with a deal, specifically the so-called "labour deal". In fact, this deal was already announced in the coalition agreement. 1 A first concretisation of some of the components of the labour deal was included in the federal budget agreement in October 2021 in which, for example, the four-day working week and night work for e-commerce were put forward. 2 However, it took until 14 February 2022 until a political agreement was reached between the federal majority parties where the various elements took shape. This resulted in a preliminary draft law that was submitted to various advisory bodies. 3 Perhaps most noteworthy here is that the social partners within the National Labour Council did not agree and delivered a divided opinion to the government. 4 The social partners were not set up with the fact that they had not been involved in the creation process of the deal beforehand and that they were only allowed to give their opinions afterwards. 5 In any case, without too many changes, the labour deal was submitted to Parliament on 7 July 2022 as the "draft act on various labour provisions" 6 and this bill was passed on 29 September 2022. On 10 November 2022, the Act of 3 October 2022 on various labour provisions was published in the Official State Gazette.
2. Below, we elaborate on the main parts of the labour deal. Most of them concern measures on working time law, some have more to do with dismissal law, but there are also other topics, with an individual right to training and provisions for platform workers being the most prominent. Just about every measure has its own chapter in the law, with its own scope of application (which, unfortunately, is usually not explicitly included) and different entry into force provisions. Unfortunately, the variety of measures and their complicated legal explanation make the legal text difficult to fathom. Below, therefore, we will briefly address some consequences and interpretation issues. We start with the working time measures, followed by the dismissal measures and end with the platform economy, the individual training right and the other measures. For each section, the entry into force and scope are clarified (as far as possible).
2 7-DAY NOTICE PERIOD FOR VARIABLE WORK SCHEDULES
3. The first measure (Chapter 2 of the Act) concerns the extension of the announcement period for variable hourly schedules. In the case of a part-time employment contract with variable hourly schedules in accordance with Article 11bis, 3rd paragraph of the Employment Contracts Act, the days and hours to be worked cannot be precisely determined in advance, but the employee is given prior notice of his/her performance to be performed. A common example is part-time wait staff in a café or restaurant.
4. The notification procedure is regulated by Article 6 of the Internal working rules Act of 8 April 1965. Previously, the minimum notice period was five working days, this is now extended to seven working days. This period could previously be reduced to a minimum of one working day by sectoral collective bargaining agreement. The reduction option by collective bargaining agreement will be retained, but the minimum will be increased to three working days. This extension of prior notice should serve to give more foreseeability to the employee so that he/she can better maintain his/her work-life balance, given that the employee will have more time to plan his/her private and professional activities. This extension also cannot be seen in isolation from the transposition of the EU Directive on predictable and transparent working conditions, which had mandated Member States to provide for minimum predictability of work. 7 Art 26 of the transposing act, moreover, provides the same seven-day period for employees who do not fall under the scope of the Internal Working Rules Act. 8
5. The rules on the publication of variable work schedules should be included in the internal working rules. Article 4 of the Labour Deal Act gives companies nine months to amend the internal work rules after the entry into force of Article 2 of the Act. However, there is no specific date for the entry into force of this article. Therefore, this amounts to nine months following 10 days after the publication of the law in the Belgian Official Gazette. The law merely states that internal working rules should be "brought into compliance". It seems that this should be done through the normal procedure for amending internal work rules. Thus, this is not merely a material change for which it would not be necessary to follow the procedure. In any case, the old rules will continue to apply until the new internal work rules come into force. However, if the company exceeds the nine-month deadline, then the new deadline may have to be applied, although this is not explicitly stipulated.
6. The Act also provides some transitional provisions for sectoral regulations that would deviate from the normal seven-day deadline. Thus, sectoral collective bargaining agreements, concluded before the amendment comes into force, that provide for a notice period of less than three days, will be temporarily respected. In principle, the joint (sub)committees have until 31 December 2022 to conclude a new collective bargaining agreement that can bring the notification period to at least three days. If no sectoral collective bargaining agreement is concluded, then the deadline will obviously be seven days. However, in three sectors, the previous collective bargaining agreement will remain in force until it is terminated. This is the case for the horticulture sector (Joint Committee 145), the cleaning sector (Joint Committee 121) and white-collar workers under PC 200 who work for driving schools. Finally, the hotel industry sector (Joint Committee 302) and textile care (Joint Committee 110) automatically fall back to a three-day notification deadline after 31 December 2022. So, these sectors do not need to take action, but they could still enter into a collective bargaining agreement that sets a longer notification period.
7. Chapter 2 will apply to both private sector employees and public sector contractual staff. However, it is unclear whether e.g. public companies would be allowed to enter into a collective bargaining agreement through their own consultative bodies that brings the publication deadline to three days (as they are not covered by the Collective bargaining agreement Act). No new criminal sanctions are foreseen to enforce this measure.
3 FOUR-DAY WORKING WEEK AND VARYING WEEKLY SCHEDULE
8. Chapter 3 of the Labour Deal Act introduces two new weekly regimes, the four-day working week and the alternating week regime. Chapter 3 contains no special entry into force provisions and will also apply to the public sector for those agencies and public enterprises covered by the Labour Act of 16 March 1971. 9
3.1 FOUR-DAY WORKING WEEK
9. One of the most high-profile parts of the labour deal is the introduction of the four-day working week (Chapter 3, Section 1) with a new Article 20bis/1 in the Labour Act of 16 March 1971. This means that a full-time working week, in principle of 38h, can be carried out on four days instead of five. Therefore, this means that a three-day weekend can be created or the employee can take a rest day in the middle of the week.
10. In the case of a 38-hour week, this will amount to four 9.5-hour working days. However, the internal working rules will have to provide for this possibility. In the case of a 40-hour week, it is slightly more difficult. In this case, the employee would work 10 hours during these four days, and this was apparently just a bit more sensitive with the legislator. Therefore, the law requires a collective bargaining agreement to be concluded for this purpose. This collective bargaining agreement will then automatically adjust the internal work rules. So, in both cases (9.5-hour and 10-hour days), some form of social dialogue will have to take place before a company can allow a four-day week.
11. However, the four-day week was introduced as an option for the employee and in view of his/her needs. The four-day week will therefore only be possible on the basis of a written request by the employee to the employer. If the employer accepts this request, then the parties have to record this in a written agreement. The request will remain valid for six months but can be renewed for six months at a time. The agreement can also be concluded for a shorter term but logically also has a maximum validity period of six months and can equally be renewed each time with a new six-month term. Given the requirement of a written request and agreement, it will not be sufficient to renew the request agreement implicitly or orally. Thus, a written request and agreement will be required each time. These six months give some certainty to the parties on the one hand, but on the other hand they also allow the employer and employee not to be forever stuck in a system with four working days. If this proves unsuccessful, they simply cannot renew the request and/or agreement, returning to the normal five-day week.
Footnotes
1 Government agreement of 30 September 2020, https://www.belgium.be/sites/default/files/Regeerakkoord_2020.pdf.
2 See Federal Policy Statement: New Growth - Reforms & Investment, 12 October 2021, https://www.premier.be/nl/federale-beleidsverklaring-nieuwe-groei-hervormen-investeren.
3 See Council of State, Opinion No 71,165/1 of 20 April 2022; DPA Opinion No 77/2022 of 22 April 2022; DPA Opinion No 107/2022 of 3 June 2022.
4 National Labour Council Opinion No 2.289 of 17 May 2022.
5 It is therefore notable that the social partners do get asked to elaborate on some of the measures. Moreover, the NAC will have to review the measures by 30 June 2024.
6 Draft Act of 7 July 2022 on various labour provisions, parl. doc. Chamber 2021-22, no. 55- 2810/1.
7 Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union OJ L 186, 11 July 2019.
8 Art. 26 Act of 7 October 2022 partially transposing Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union, BS 31 October 2022.
9 The public sector is not mentioned at all, though, and it is unclear to what extent e.g. public companies will be able to use the possibility of introducing a regulation by collective bargaining agreement. According to some sources, the measure only covers the private sector, but such a restriction does not follow from the act itself. The De Sutter administration would also like to introduce the system for federal civil servants. See De Standaard, "Vier dagen werken en dus ook zestien dagen vakantie?", 31 October 2022.
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