On 26 January 2021 a new nation-wide collective bargaining agreement no. 149 (‘the CBA’) was concluded setting forth specific rules covering teleworking in Belgium during the current Corona-crisis. It will be in effect for a definite term, until end 2021.
It applies to all companies which did not, by 1 January 2021, introduce any arrangements covering teleworking, under prevailing regulations, such as CBA no. 85 on structural teleworking or the act of 5 March 2017 on occasional teleworking. It applies in a supplementive way, for teleworking not covered by any (company/industry) CBA, by individual arrangements or by policies which were introduced ‘in accordance with the rules on social concertation’. To start, it is thus unclear whether the CBA mandatorily applies to all companies which have used unilateral policies to govern the terms of tele- or home working in their Belgian operations. Chances are that it does.
Content-wise, it purports to simply spell out and confirm the basic rules contained in the afore-mentioned sources of law in relation to the current Covid-19 restrictive rules on teleworking. However, on the face of it, the CBA appears to do quite a bit more:
- It imposes the payment of an allowance to cover all costs related to the installation, use, maintenance, repair and amortization of with equipment of the employee, and covering the additional communication cost (which is wider than the cost allocation under prevailing rules);
- By confirming that the tele-worker is subject to the same work schedules and working time as applicable in the company to colleagues working from the factory/office, the CBA appears to imply that working time regulations (working time limits, overtime etc) are applicable to teleworkers (which is definitely not the case under hierarchically superior statutory provisions);
- The CBA appears to reinforce the privacy protection for teleworkers in the context of authorized monitoring of work, and imposes the introduction of policies relating to the use of IT-equipment (which is currently only suggested and recommended notably by CBA no. 81);
- The CBA imposes upon employers the set-up and organisation (incl the cost) of digital communication between teleworkers and employee representatives on the works council and other bodies of worker representation;
- The CBA appears to introduce a ‘right to disconnect’ in favour of the teleworker, up to now unknown in Belgian law; and
- Finally, in order to ensure workers’ wellbeing and prevent isolation the employer is required to take adequate measures to ensure the teleworkers stay connected with colleagues and the company, i.a. by organising so-called ‘return-to-the-office-moments’. Special attention should also be given to “vulnerable teleworkers”, i.e. “teleworkers who are confronted with additional tensions on account of their personal, their family or housing situation”. The CBA thus introduces a new category of workers, based on their imminently personal situation. Moreover, these return-to-the office moments appear to be in violation of the latest Ministerial regulations that reiterate the overarching rule of mandatory telework, without any window for such return moments.
Although its stated intent was to merely provide a reference base to clarify certain rules and suggested practices in the context of the current mandatory teleworking (in the Corona-crisis), the CBA manifestly by far exceeds that goal as it obviously widens certain obligations imposed upon business, and reinforces certain rights of workers.
By the same token, it creates legal uncertainty on key issues (like the application of working time rules on teleworkers), since as a source of law, it is inferior to mandatory provisions of statutes such as article 119 Employment Contracts Act, on home working and teleworking. It also appears to silently pre-empt on certain trends and possible future legal developments (such as the right to disconnect and the facilities on digital communication in collective labour relations).
So, in sum, business beware, since the CBA may well be far less ‘innocent’ or neutral than its stated goals and brief time effectiveness might lead you to believe.