Belgium’s Labour Deal: employment law 2.0 or much ado about nothing?

Pieter Pecinovsky & Gautier Busschaert, Van Olmen & Wynant

The Act holding various labour provisions of 3 October 2022 (ie “the Labour Deal”) is supposed to be the highlight of the employment law reforms undertaken bythe current federal government. It was already announced in 2020 and after two years of negotiation, the Act finally entered into force. We will summarize the most eye-catching measures below.

The Labour Deal contains several measures regarding working time. The most talked-about are the introduction of a four-day work week and the obligation for employers to lay down rules regarding the right to disconnect for employees.

Thanks to the four-day work week, an employee would be able to work a full schedule of (in principle) 38 hours in four days instead of the normal five days. This would lead to four days of 9,5 hours, which exceeds the normal maximum of 9 hours on a daily basis. In return, the employee would receive three days of rest instead of two currently. The four-day work week is meant to be a voluntary option for the employee, not a tool to increase flexibility for the employer. It can only be introduced at the request of an employee, but the employer can deny this request on the condition that he motivates his decision. If the employer accepts to apply a four-day workweek, the modalities thereof will be laid down in a written agreement valid for a duration of maximum six months, which can be prolonged. In order to make this system possible, the employer will also have to adapt the internal work rules. In practice, many employees seem eager to try the new system, but employers are reluctant. This is understandable, as this system only seems suitable for companies with a rigid working time system.

Next, employers are asked to lay down rules in a collective bargaining agreement or in the internal work rules regarding the right to disconnect. The Labour Deal does not create any subjective right which employees can claim before the courts, but companies will need to create a policy regulating how employees should e.g. not be compelled to be reachable or answer their emails outside of normal working hours. However, every company will be able to adapt these rules to its own needs and practice. The Belgian system is heavily inspired by the French example.

The Labour Deal also contains some measures relating to dismissal law. The most interesting part is the so-called ‘transition track’. This allows an employee who was dismissed with a notice period to work during the notice period for another employer. Officially, the employee remains in service of the ex-employer, but in practice he will perform work for the new employer-user. The modalities of the transition track will be laid down in a four-party agreement between the employer, the employer-user, the employee and a public employment or interim agency. Most interestingly, the employee will continue to be paid by his ex-employer, but he will at least earn the same salary as comparable employees of the employer-user. The employer-user will compensate the ex-employer for a part of the remuneration he paid to the employee. At the end of the transition track, the employer-user will have to offer an open-ended employment contract to the employee. The purpose of the transition track is thus to make a smooth transition to a new job possible without having to wait for the end of the notice period.

Next, the Labour Deal also introduces a double protection for digital platform workers (think of Uber, Deliveroo,…). First it creates a rebuttable presumption of an employment contract, based on eight criteria. If some of these criteria are fulfilled, the digital platform worker is presumed to be an employee of the platform. However, the platform can rebut the presumption with all means. Interestingly, five of the eight criteria are taken from the European Commissions’ proposal for an EU Directive on platform work. As the negotiations on this Directive are still ongoing, the European criteria seem to have already changed in the proposal. This means that, if the Directive is approved, Belgium will already have to adapt its own presumption. Next, the Labour Deal also introduces an obligation for digital platforms to pay for an occupational accident insurance for self-dependent platform workers who they hire, as they often perform dangerous jobs (e.g. deliveries on bikes in busy cities).

Finally, a last important measure is the introduction of an individual right to 5 training days per year for each employee. The modalities of these training days will be laid down in sectorial collective bargaining agreements and the employer will have to draft a training plan every year in order to make it possible for the employees to follow these professional trainings.

The Labour Deal  has just entered into force and Belgian employers are starting to prepare themselves for the new obligations. However, there are still many unanswered questions regarding the new rules and considering this uncertainty we will need to see whether the impact of the Labour Deal will be as big as the politicians seem to hope. One cannot discard the possibility that (some of) the measures could remain theoretical tools which are not used in practice, as has often been the case with past Belgian labour law reforms.