As previously discussed, the Belgian Social Criminal Code was reformed by the Act of 15 May 2024 (entry into force on 1 July 2024). One of the interesting adjustments is the introduction of article 146, which penalises employers who do not introduce and use a time tracking system when applying floating work hours for employees. With a system of floating work hours (glijdende uurroosters, horaires flottants), an employee has certain blocks of fixed hours but also "floating hours", which allow the employee to arrive or leave earlier or later or to take a shorter or longer break. This system offers more flexibility to the employee. This flexibility makes it also more complicated to control the compliance with working time limits, as there is no longer any fixed start and end to a working day. This is way the legislator demands the use of a time tracking system.
The new art. 146/1 Social Criminal Code states the following:
"Art. 146/1. Floating working hours
The employer, his delegate or his representative who, in
contravention of the Labour Act of 16 March 1971, in the event of
the application of a flexible working time, shall be punished by a
level 2 sanction:
1° has not provided for a system for monitoring working
time which includes for each worker concerned the information
required by law;
2° has not provided for a system for monitoring working
time that makes it possible to retain the data required by law
during the current reference period;
3° has not taken the necessary measures to ensure that the
system for monitoring working time can be consulted by each worker
employed on the basis of a flexible working time or by the official
appointed by the King;
4° has not kept the data recorded by the working time
monitoring system for a period of five years after the end of the
day to which the data relate;
5° has not ensured that the worker, during the reference
period, is able to ascertain the precise number of hours he has
worked on the basis of a flexible working time, more or less than
the average weekly duration of the flexible working
time.
In the case of the offences referred to in paragraph 1, the
fine shall be multiplied by the number of workers
concerned."
The Explanatory Memorandum to the Act of 15 May 2024 (article-by-article discussion, p. 64) states the following:
"This article inserts a new Article 146/1 into the Social Criminal Code in order to punish infringements of the obligations provided for in the new Article 20ter, § 5, of the Labour Act of 16 March 1971, which was inserted by the Act of 5 March 2017 on feasible and manageable work. The aforementioned Article 20ter, § 5, establishes obligations on the part of the employer in the event of the application of a floating working time. Paragraph 5 provides for the obligation, in the event of the introduction of floating working hours, to have a time-tracking system for each worker concerned. It is indeed essential for both the employee and the employer to be able to check at any time whether the system has been complied with, whether the balance is positive or negative in relation to working hours and the reference period. The recording does not have to be electronic, but it must meet the conditions laid down and be accessible to the worker and to the officials responsible for monitoring the provisions on working time. The recorded data will have to be kept for five years." (Ch., 2016-2017, DOC 54 2247/001, p. 51). The level of sanction provided for is level 2."
Indeed, the provision of a system of time tracking has always been a condition of validity for the use of floating work schedules. This means that without such a system, an employer could not apply the floating schedules to its employees. However, there was no specific criminal offence for a non-compliance provided in the Social Criminal Code. Nonetheless, in principle this would mean that the application of the floating work schedules system was an illegal deviation from the normal work schedules, which was already punishable by a level 2 sanction by the original Article 146 of the Social Criminal Code.
In practice, however, many employers failed to actually introduce and/or use the system of time tracking, as a result of which the legislator may have found it necessary to introduce a specific offence in Article 146/1 (the request probably came from the social inspection services). Although non-compliance with the rules for floating working hours could already have been punishable indirectly under Article 146 of the Social Criminal Code, it will now be easier for the Social Inspectorate to enforce this obligation, because failure to comply with this specific obligation is now clearly punishable in itself: the inspectors no longer need the detour of Article 146.
As a result, the non-introduction or non-use of a time tracking system is therefore more likely to lead to a PV (criminal report). However, the level of the sanction remains low (level 2 rarely leads to criminal prosecution). The risks are the following:
- Criminal fine: 400-4,000 euros (multiplied with the number of relevant employees with a max. of 100).
- Administrative fine: 200-2,000 euros (multiplied with the number of relevant employees with a max. of 100).
Therefore, companies that currently apply floating work schedules without a time tracking system are advised to introduce such a system. The fact that a specific crime has been introduced for this may indicate a frustration on the part of the social inspectorate because of the poor compliance with this obligation, so it is possible that specific checks will follow and the relative tolerance that has existed until now will come to an end.
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.