Belgium: Labour Deal 2022: 4 Day Work Week and Alternating Work Week
One of the most high-profile parts of the labour deal is the introduction of the four-day working week (Chapter 3, Section 1) with a new Article 20bis/1 in the Labour Act of 16 March 1971. This means that a full-time working week, in principle of 38h, can be carried out in four days instead of five. Therefore, this means that a three-day weekend can be created or the employee can take a rest day in the middle of the week. Chapter 3 contains no special entry into force provisions and will also apply to the public sector for those agencies and public enterprises covered by the Labour Act of 16 March 1971.
In the case of a 38-hour week, this will amount to four 9.5-hour working days. However, the internal working rules will have to provide for this possibility. In the case of a 40-hour week, it is slightly more difficult. In this case, the employee would work 10 hours during these four days, and this was apparently just a bit more sensitive with the legislator. Therefore, the law requires a collective bargaining agreement to be concluded for this purpose. This collective bargaining agreement will then automatically adjust the internal work rules. So, in both cases (9.5-hour and 10-hour days), some form of social dialogue will have to take place before a company can allow a four-day week.
However, the four-day week was introduced as an option for the employee and in view of his/her needs. The four-day week will therefore only be possible on the basis of a written request by the employee to the employer. If the employer accepts this request, then the parties have to record this in a written agreement. The request will remain valid for six months but can be renewed for six months at a time. The agreement can also be concluded for a shorter term but logically also has a maximum validity period of six months and can equally be renewed each time with a new six-month term. Given the requirement of a written request and agreement, it will not be sufficient to renew the request agreement implicitly or orally. Thus, a written request and agreement will be required each time. These six months give some certainty to the parties on the one hand, but on the other hand they also allow the employer and employee not to be forever stuck in a system with four working days. If this proves unsuccessful, they simply cannot renew the request and/or agreement, returning to the normal five-day week.
The agreement should include the following elements:
- the time and duration of rest periods and days of regular break from work applicable during the working arrangement;
- the start and end date of the period during which the working arrangement is applied.
The agreement must be concluded before the start of the working arrangement with four working days.
A copy of the request and of the agreement must also be kept with the internal work rules in the place within the company where the internal work rules can be consulted, for the period they are in force. Thereafter, the employer must keep the copies for five years.
The first mentioned obligation leads, primarily, to the question of whether these copies must then also be added electronically if the internal work rules can be consulted electronically. The legal status of electronic internal work rules is not settled. However, it is often allowed by social inspection and, moreover, the recent explanatory memorandum to the transposition law of Directive EU 2019/1152 (on transparent and predictable terms and conditions of employment) contains a clear confirmation that digital internal work rules should be possible. In any case, the teleological interpretation of the law implies that the social inspectorate as well as the employee should have access to the copy.
A second question arises about the desirability (and compliance with the GDPR) that adding such a copy to the internal work rules would allow all employees to learn which colleagues use a four-day system and what modalities have been agreed upon. The Labour Code may provide a processing ground, but this does not seem to have been given very long and hard thought. All in all, employer has few other options to comply with legal obligations. Finally, a copy must also be delivered to the employee to the employee and to the Health & Safety Committee (in its absence to the union delegation) if it so requests. All these rules on transcripts and their retention are enforced by a new Article 186/1 Social Penal Code with a Level 2 sanction. This is one of the few sanctions provided by the Labour Deal Law.
As stated above, the employer may accept the request, but it may also refuse the request. Where an acceptance will lead to a written agreement, a refusal must be formalised with a written justification (this can be done, for example, by letter or e-mail) delivered to the employee within one month of the request. However, no sanction is provided for the employer who fails to comply with this. The law also provides no substantive requirements for the refusal, leaving the employer with a wide margin of appreciation. Perhaps in many companies its introduction will be difficult due to organisational reasons. If the internal work rules or a collective bargaining agreement do not provide for the possibility of using a four-day week, it will be difficult for the employer to agree to the request (unless if such agreement is given subject to the introduction of the system).
Furthermore, the law also provides for a ban on any adverse treatment of the employee in response to his/her request to enter a four-day system. Among other things, this also includes a prohibition on dismissal. However, the law does not provide for a reversal of the burden of proof, so it falls to the employee to prove that any adverse action or dismissal resulted from the request by the employee. There is also no provision for a lump-sum severance payment, although a dismissal due to such a request might possibly result in compensation for manifestly unfair dismissal (CBA No. 109).
In addition, the Labour Deal Act also prohibits the employee from performing voluntary overtime on the “fifth day” when he/she performs a full-time schedule on four days (of course, this is also not possible on the 6th and 7th day of the week). Indeed, the legislator wants to prevent this system from being used to deviate from the normal weekly working hours limits. Moreover, the ratio legis of the measure is to create more time for leisure by concentrating working hours on a shorter period. If the freed-up day would then still be filled with working time, then the measure is not being used for its intended purpose.
Finally, the Labour Deal Act does not regulate anything about the impact of the four-day week on annual leave or meal vouchers. In principle, this could mean that workers in a four-day week would legally be entitled to only 16 days of holiday instead of 20 and would not be entitled to meal vouchers for days on which they do not work. However, the government has meanwhile informally passed this problem on to the social partners with the message that they should reach agreements on this issue. Such agreements could, for example, neutralise the absence during the fifth day so that employees would retain their rights as if they still worked five days a week. Other questions relate to the application of a system of 1/5th time credit or the possibility of “floating working hours” during a four-day work week. Of course, this uncertainty will not play into the popularity of this measure.
Key Action Points for Human Resources and In-house Counsel
- If you want to allow 4-day work weeks, please provide this possibility in the internal work rules or in a collective bargaining agreement (necessary in case of a 40-hour week).
- Prepare a standard procedure for responding to requests of employees.
- Provide a standard template for the agreement regarding the 4-day work time.
- Do not take any adverse measures against employees who request a 4-day work week.