The latest tsunami of new employment regulations in Belgium

Written By

pieter dekoster Module
Pieter De Koster

Head of Employment Belgium
Belgium

After the Covid-crisis, in the second half of 2022, many new employment-related regulations have come into effect in Belgium. These new measures touch upon a wide variety of matters on employment. In this article, Pieter De Koster, partner in our Brussels office, discusses how these measures will impact businesses and the whole Belgian corporate panorama.

Some of them are the transposition of EU Directives into Belgian law, others are inspired by the political aspirations of the current so-called ‘Vivaldi’ government, and yet others are the result of plain parliamentary work.

These new measures – listed hereinafter (and briefly outlined) – touch upon a wide variety of themes in the employment space, ranging from new protective discrimination grounds, enhanced workers’ rights for vocational training, the right to disconnect, the right to request a 4-day work week, the right to claim more comfortable working conditions, over fines for having an excessive number of long-term sick employees, to incremental financial liabilities in the context of garden leave or employee restructurings.

The common denominator of most, if not all, these regulations is they are not favourable for businesses. In other words, most of these measures introduce additional limits or constraints on businesses’ freedom to operate, impose new financial liabilities or make business decisions and processes more cumbersome. These measures will increase the cost of doing business in Belgium, in financial terms, process terms and/or administrative terms.

Some of the measures are only applicable to businesses of a certain size (headcount of +20 or +50), whilst others apply across the board. Some of them have been highly mediatised whilst others have clearly remained under the radar of the general and trade press.

Below is a list of the measures, in no particular order (with indication of the source of law):

  • Enhanced rights to information on individual employment terms (TPWC Act of 7 October 2022) – employees must receive basic terms of employment in writing before employment starts
  • Ban on exclusivity clauses (TPWC Act) – contract clauses imposing exclusivity of services are banned
  • Individual vocational training entitlements and mandatory annual training plans (Labour Deal Act of 3 October 2022) – employees are entitled to 5 paid days of vocational training per year, and companies must establish annual training plans
  • Employees’ right to request a change of working conditions and associated protection against dismissal (CBA 161 – TPWC Act) – employees can request changes to more transparent and predictable working conditions and are protected against any negative consequences or in case of complaints
  • Enhanced flexible working conditions for parents and carers and associated protection against dismissal (CBA 162 – Act of 7 October 2022) – parents and carers can benefit from more flexible working conditions and are protected against any negative consequences or in case of complaints
  • Enhanced termination rights for part-time employees (Act of 7 October 2022) – all employees who perform part-time work (based on thematic leaves and time credit or as a result of resuming work after incapacity) are entitled to severance based on full-time pay
  • The 4-day work week (Labour Deal Act) - when made possible at company level, employees can request to perform full-time jobs in a 4-day work week
  • The alternating work schedule (Labour Deal Act) – when made possible at company level, employees can request to perform full-time jobs in alternating work schedules
  • The right to disconnect (Labour Deal Act) – companies are required to set rules/policies implementing the right to disconnect from work
  • The transition trajectory (Labour Deal Act) – employees can request to serve part of notice at third-party employer
  • Variable weekly work schedules (Labour Deal Act) – the notification deadline for part-time variable work schedules increases from 5 to 7 working days
  • The extended discrimination grounds – ‘past’ health condition (Act of 20 July 2022) – also past health condition (and not only present or future) is protected as a discrimination ground
  • The new discrimination ground(s) – ‘family responsibilities’ (Act of 15 November 2022) – in gender discrimination, the exercise of family responsibilities is a new protected discrimination ground
  • The cumulation of damages in case of discrimination (Act of 15 November 2022) – cumulation of damages is henceforth allowed in case of multiple discrimination or other sanctioned behaviour upon termination
  • Revised reintegration trajectory for long-term ill (RD of 11 September 2022) – more complex procedural and substantive rules apply
  • New medical force majeure rules (Act of 30 October 2022) – medical force majeure is only possible after completing a lengthy complex procedure
  • No sick note required for first day of incapacity (Act of 30 October 2022) – for maximum 3 times per year, this leniency applies
  • Reinforcement and implementation of fines for an excess number of long-term ill (Act of 20 November 2022) – companies which have a proportionately higher number of long-term ill employees on the payroll (in comparison with industry standards) are fined
  • Protection for whistle blowers reporting breaching of national or EU law in pursuit of new rules and processes on whistleblowing (Act of 28 November 2022)
  • Mandatory presence registration in certain industries (maintenance, cleaning) (Program Act of 26 December 2022)
  • Abolishment of the reimbursement of reintegration allowances in collective layoffs (the part of such allowances exceeding severance pay, as paid by the employer) (Program Act)
  • New social security tax for short-term temporary labour (Program Act)
  • Increase of the activation contribution (in case of full suspension of the employment contract) (Program Act)

The measures above enhance the protection, improve the rights and increase the financial entitlements of individual employees in the context of the performance and termination of an employment relationship.  It is questionable though whether they have a positive impact on the collective interests of workers (in terms of challenges on work organisation, re-allocation of work etc).  Also, it appears that the balance between rights and obligations in the employment relationship is not really maintained.

It is expected that there will be more employment-related measures which businesses will have to reckon with over the coming months, since the above boat of measures has not stopped at year-end.  This appears to provide all the more reason to seek bespoke legal advice and hands-on assistance in order to successfully navigate these waters.

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