The 2022 Belgian labour deal: new measures predominantly enhancing employees’ interests (part 2)

In this second part of the analysis of the aforementioned bill, we critically outline the remaining key features relevant to businesses.

Dynamisation of the labour market

Under the heading of dynamisation of the labour market, the bill contains a number of measures which could be seen as some embryonical form of modernisation of employment law. They enter into effect on 1 January 2023 and cover all dismissals from that date onwards.  

First, a legal provision contained in the Act of 26 December 2013 (partially corrected by the 2019 labour deal of the previous government) but never executed nor implemented is now rewritten and restated. For all dismissals with a notice period of 30 weeks or more, the termination package will be split into two parts. A first part – equal to 2/3 of the statutory notice due (with a minimum of 26 weeks) – will be treated as before (i.e., served or paid out in a lump-sum amount). The second part (1/3 of statutory notice with a minimum of 4 weeks) will be used partly for employability-enhancing services. Contrary to the 2013 measure, not the full value of such part of termination entitlements, but only the employer social security tax on top of the gross amount of such severance will be applied to such services. The employability-enhancing services essentially refer to outplacement services.

In practice, this means that the overall cost of termination to business will not increase, and dismissed employees will receive an equal amount of severance. Only the government (social security agency) will see revenue get lost to HR services providers who will pick up that business. It is unclear for the moment how this new measure aligns with the mandatory outplacement services to be offered to the same category of employees (those with 30+ weeks of notice), paid for by way of deduction from the severance package.

Transition trajectory

The second measure is the so-called transition trajectory. This measure can only be applied in case of dismissal with notice to be performed and aims to facilitate employees’ transition from one job to another. 

The idea is that, upon the initiative of either party, dismissed employees can be seconded to another employer during their notice period through the intermediary of a temporary labour agency (or the equivalent government agency) whilst staying on the payroll of the dismissing employer. The employer/user of the employee is required to pay part (how much?) of the salary cost during the trajectory and to hire the employee under an indefinite term employment contract at the end of the secondment unless the secondment is prematurely terminated by either party (employer/user or employee). Failure to comply with the recruitment requirement exposes the employer/user to pay compensation to the employee equal to half of the duration of the transition trajectory. In the case of recruitment by the employer/user, the duration of the transition trajectory will count as service time in the service of the employer/user. The full length of service with the previous (dismissing) employer will also count towards the length of service for future entitlements under career break, time credit and thematic leaves regulations. Terms and conditions of the secondment must be outlined in a 4-party document involving both employers, the employee and the agency. Implementing regulations will determine the minimum length of the secondment.

The transition trajectory cannot be combined with the previous measure on employability-enhancing measures.

A number of conceptual and practical points remain unclear, like what happens to the original notice period if the transition trajectory fails, what happens in case of suspension of the notice during the transition trajectory, etc. Moreover, it again appears that the burden of these measures is put entirely on the dismissing employer (who pays part of salary cost during notice without having the benefit of the services). Similarly, the new employer/user is faced with a financial sanction in case the secondment does not work out and inherits the cost of recognised length of service with no cost or risk for the employee, nor any government incentive or support to do this.

E-commerce industry

To somewhat accommodate the business needs of the e-commerce industry, two specific (and quite narrow) measures are being taken:

• First, the possibility is created to introduce evening work (between 8 pm and midnight) based on a collective bargaining agreement signed by a single trade union (so foregoing the requirement to have all trade unions agree).
• Second, a one-time experiment is introduced where companies can voluntarily participate in an experiment of more flexible work regimes on specific business grounds. Specifically, evening labour (between 8 pm and midnight) can be introduced by a simple amendment of the company’s work regulations, covering a period of 18 months. Employees can voluntarily enter the experiment, and it must be assessed by the works council after completion.

These rules enter into effect 10 days after publication of the Act.

Situation of platform workers

Finally, the bill addresses the employment situation of platform workers.   

As previously announced, the professional relationship between a worker and a digital platform business is henceforth presumed to constitute an employment relationship if at least 3 of the following 8 (of 2 of the last 5) criteria are met: (i) the business can claim exclusivity, (ii) a geolocalisation mechanism can be used for purposes other than proper functioning of its services, (iii) the business can limit the worker’s freedom in the way the work is performed, (iv) the business can limit the income level of the worker (through hourly rates, etc.), (v) the business can impose a dress code and behaviour towards customers, (vi) the business can determine the prioritisation of orders and/or sequence of order deliveries, (vii) the business can restrict the freedom to organise work (including the freedom to choose working hours and/or call on subcontractors), and (viii) the business can restrict the possibility for the worker to build a customer base or perform services for a third party. These rules amend the Act of 27 December 2006 on the nature of the professional relationships and will enter into effect on 1 January 2023.

On top of this, digital platform businesses are required to have occupational hazards insurance for all of their workers (irrespective of their employment status). Failure to do so renders the platform business liable for all damages caused to the workers. These rules will enter into effect at a later date determined by Royal Decree.

Beyond the punctual situation of platform workers, amendments are also brought to the functioning, role and authority of the Administrative Commission regarding the nature of labour relations, set up under the aforementioned Act of 27 December 2006.

Conclusion

By way of conclusion, it is obvious that the business community cannot really be thrilled with these new measures resulting from the long-awaited ‘labour deal’. They do not actually bring much of the urgently needed modernisation of employment laws – nothing on additional flexibility measures, nor measures which render the workforce (or their representatives) co-responsible for enhanced employability. Moreover, the actual cost (financial, risk and administrative burden) of all of these measures falls almost exclusively on the shoulders of the business community.

How these measures may result in any increment in employability rates among the active population remains a mystery unless the re-characterisation of many platform workers into employees – under the new rules – would suddenly and unexpectedly boost our workforce numbers.