HR Law for Associations: Update 2017

This was a full and complex session dealing with the latest social law developments impacting associations. The speakers presented on three diverse themes that will be summarised respectively below. In view of the detail of the application of the laws discussed, it is advised to read this summary in conjunction with the presentation slides.

Click here to download the presentation. 

Agile and “workable” (flexible) work

Annabelle dealt with this new introduction.  There are 8 headers in this chapter – the correct slide is referred to for each header.

Annualisation of working time (slide 5)
This measure is intended to deal with jobs where there is a notable busy period to be contrasted with those of less high activity.  The reference period to respect the average weekly working time is increased to 12 months for every employer. Furthermore, the “internal overtime work limit” (i.e. the limit above which compensatory rest must immediately be granted) is increased to 143 hours for every employer.

Voluntary overtime (slide 6)
New legal ground to perform overtime work. This possibility must be offered by the employer and explicitly accepted by the employee. The consent must be written and cover a maximum period of 6 months (renewable). There is a legal limit of a maximum of 11 hours/day, 50 hours/week and 100 of such overtime hours per year (increase possible via sectorial CBA).

Investment in training (slide 7)
This still seemed very vague but sought to ensure an employee’s average right to training equivalent to 5 days/FTE/year. Different rules for SMEs.

Occasional telework (slide 8)
This telework would need to be irregular and due to an act of god or personal reasons.  This might entail a workman’s visit for urgent repair or a doctor’s appointment. The employer has the right to refuse in case of reasonable grounds.

Expansion of plus minus conto (slide 9)
This refers to when the average working time calculation basis can be taken over a longer reference period (maximum 6 years). It allows for employees to work a maximum of 10 hours/day and 48 hour/weeks. Meant for sectors of strong international competition. It is not automatically applicable and must be introduced by the joint committee of the employer.

Agency contracts for indefinite durations (slide 10)
Employment contract between a temporary work agency and a temporary agency worker for an unlimited duration. For associations that use temporary workers, there will be no change as temporary agency work can still only be applied under the same conditions and terms. It is not automatically applicable and must be introduced by the joint committee for temporary agency work.

Career saving (slide 11)
This means allows for an employee to preserve certain predefined vacation time or income for using for e.g. a sabbatical or to reduce hours for personal reasons. It is not automatically applicable and actions must first be taken by the joint committee of the employer (if no decision after 6 months: decision possible by employer).

Donation of leave (slide 12)
This measure is exceptional and can be used if an employee wishes to donate conventional leave days to another employee who is looking after a sick child. It is a whole new system that is voluntary, definitive and without payment of any kind in return for the donation. It is not automatically applicable and actions must first be taken by the joint committee of the employer (if no decision after 6 months: decision possible by employer).

Floating work schedules (slide 13)
Legal framework for the current policy of tolerance. Amongst others, a fixed core time and a variable core time must be determined; a maximum of 9 hours/day and 45 hours/week and a system of time monitoring are some of the conditions within this system of floating working schedules.

Simplification of formalities for part-time work (slide 14)
This introduces a big change in relation to the administrative burden of part time schedule. It is no longer required to include all part-time working schedules in the work rules, but that a framework for variable part time work schedules is included in the work rules. Furthermore, important modifications to the notification system regarding variable part-time working schedules.

Employers’ groups (slide 15)
System in which employers can form a group and hire employees as a group. This might be of interest to smaller associations that are not in need of full time employees, and sometimes service providers, according to the varying needs of the respective organisations. Indeed, a shared employee could be “leased” to another organisation (in other words: an exception to the legal prohibition to lease employees).

Palliative leave and time credit (slide 16)
An extra month has been added for palliative leave (outside the context of time credit). These new time credit measures are due to enter into force on 1st April 2017 (unless a Royal Decree determines an earlier date).

E-commerce and night work (slide 17)
Until now there is a prohibition on night work (between 8 pm and 6 am) unless a specific legal exception provides for it. A new such exception has been introduced for “logistics and supporting services connected to electronic commerce”.

Re-integration of long term sick employees

Sophie addressed this section of new rules that came into force on 1st January 2017. It was introduced as the government noted that employees on sick leave were costing the state more than those who are unemployed.

Please see slides 19-24: this change increases the importance of the company doctor who now plays a crucial decision making role and who should have a better understanding of the agreed work than another medical professional. The employer can now himself request that the company doctor examines the employee either after 4 months’ sickness (only as of January 2018 for employees for whom the incapacity started before 1 January 2016) or if the treating doctor states that the employee is definitively unable to return to work. Request also possible by employee, treating doctor or medical officer of insurance fund.

In brief, there are 5 key decisions that a company doctor can take:

i.Employee will be able to return to the agreed work in time, possibly with modification to working post, and can perform other work in the meantime;

ii.Employee will be able to return to the agreed work in time, possibly with modification to working post, but cannot perform other work in the meantime;

iii.Employee is definitively unable to return to the agreed work but can perform other work;

iv.Employee is definitively unable to return to the agreed work and cannot perform other work;

v.That it is not opportune to examine the worker now, but it can be possible in the future (evaluation every two months).

In case of decision I or III (or IV after appeal), a re-integration plan is drafted by the employer in consultation with the employee, the company doctor and possible other persons which can be useful. After the consultation, there are two possibilities: (i) adapted work was found, or (ii) it is technically or objectively impossible to offer another post. In case of (ii) the employer must justify as to why.  One of the exemptions that might be applicable to associations is that the organisation is so small that no equivalent adapted or appropriate post CAN be offered.

The employment agreement can only be terminated for medical force majeure if (i) the employee is definitively unable to return to work, and (ii) the re-integration track is definitively terminated.

Sophie underlined that, unlike what employers tend to think, an employee can be dismissed during a period of incapacity of work. The reasons for the dismissal however cannot relate to the incapacity for work (if so, this will be considered discrimination based on the employee’s health status and the employee may claim additional compensation equal to 6 months’ salary). Furthermore, the dismissal must not be manifestly unreasonable.

Student work (slides 26-27)

The new legislation for student work introduces greater flexibility with regards to the spread of time worked in that students will be able to work 475 hours instead of 50 days per calendar year under special social security regime (special social security contribution).  As of the 476th hour, the usual social security scheme applies at much greater cost to both parties, the employer in particular!  All information on “student@work”, and also possible for employer to check the hours performed by the student on this website. Associations should note this change for trainee periods etc.

The presenters were so complete that there was just enough time for a few important questions and remarks, addressed herein.

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