Belgium: Labour Deal 2022: Evening Work In E-Commerce

The Belgian government has long been accused of putting e-commerce in the hands of companies from neighbouring countries by not providing measures for more flexible work. The labour deal now partly addresses this, in what can perhaps be called the most important trophy for employers. E-commerce is defined as “the performance of all logistics and support services associated with the electronic trade of movable goods”. This primarily refers to online shops with/and parcel services.  The Labour deal act provides two options to introduce “evening work” for e-commerce companies.

1. Introduction via collective bargaining agreement

Firstly, Chapter 7 of the Labour Deal Act allows e-commerce companies, via collective bargaining agreement, to introduce – hold on – “night work that does not constitute an arrangement with night services” (Section 1). In human language, this means performance between 8pm and midnight (after all, night performance is performance after midnight). This will thus make it easier for the e-commerce sector to introduce evening work or “half-night work”, meaning that these companies will not necessarily have to follow the normal way of introducing night work via the amendment of the internal work rules.

In fact, this system is not that new. Art. 57 of the Programme Act of 25 December 2017 already provided the same regulation of evening work, but it was only temporary and expired on 31 December 2019. The same Programme Act of 2017 (and this does remain in force) had provided an exception for the prohibition of night work for e-commerce in Art. 36, 22° Labour Act of 16 March 1971. So, it was and is indeed possible to introduce an ordinary system of night work by amending the internal work rules in accordance with the procedure set out in Articles 11 and 12 of the Internal work rules Act. Since employee representatives in the works council can easily block or hinder such introduction via the internal work rules, it is sometimes easier to conclude a company collective bargaining agreement, since this only requires the agreement of one representative trade union. In particular, such a collective bargaining agreement will automatically amend the provisions of the internal work rules, without having to go through the amendment procedure.

1. Temporary experiment

However, the legislator takes into account that it will be equally difficult to conclude a collective bargaining agreement in certain companies, given the potential resistance from trade unions. Therefore, an option to introduce evening work via a temporary and one-off experiment (a pilot project) of up to 18 months (non-renewable) is additionally provided for (Section 2 of Chapter 7).  The aim of this experiment option seems to be to allow the employer to convince trade unions or consultative bodies that are initially adverse towards evening or night work by trying out the system in practice and thus demonstrating that the feared adverse effects do not occur. That way, once the experiment is over, a collective bargaining agreement could still be concluded, or the internal work rules can be amended to introduce the scheme permanently.

There are many conditions attached to setting up such a pilot project. For instance, employees may only participate in the experiment on a voluntary basis (via a written request). This written request must be kept for one year by the employer for inspection by the social inspectorate (FPS Employment, Supervision of Social Laws). Moreover, both employees who participate and those who refuse to participate in the experiment are protected by a legal prohibition on adverse measures (including dismissal). While there is no specific sanction for this, there is a reversal of the burden of proof in case of dismissal: the employer must prove that there are reasons other than the refusal to participate. Moreover, the employer must communicate these reasons in writing to the employee upon request. However, no further procedural rules have been developed for this (e.g. think of the rules of CBA No 109).

The framework of the experiment should logically not be introduced through an amendment to the internal work rules, but the timetables used during the experiment should be included as an annex to the internal work rules. Nor is the experiment a licence to escape social dialogue. There is an obligation to involve the works council in the elaboration of the experiment. In the absence of a works council, the health & safety committee will be involved, in its absence the trade union delegation and in its absence the workers themselves. This involvement seems to indicate a consultation obligation whereby the consultative bodies can set out their views, although no veto is envisaged. A mere notification to these consultative bodies (information obligation) seems insufficient to meet the required involvement, although this is not explicitly mentioned.

To emphasise the experimental character of this trial project, the employer must also notify the experiment in writing to the competent local directorate of the General Directorate of Supervision of Social Laws of the FPS Employment and the competent joint (sub)committee. This notification must contain the following elements:

• The duration of the project, with maximum eighteen months;
• The employer’s reasons for introducing the experiment (why is evening work necessary and why does it not succeed through a collective bargaining agreement or internal work rules);
• The criteria on the basis of which the experiment will be evaluated.

Therefore, an evaluation of the experiment based on the reported criteria must actually be carried out after the end of the experiment and again the above-mentioned consultative bodies within the company must be involved. The written evaluation report must be submitted to the competent local directorate of the General Directorate for Supervision of Social Laws of the FPS Employment and the competent joint (sub)committee within three months of the end of the experiment.

Chapter 7 is not characterised by any particular provisions regarding the entry into force. However, its application to the public sector is not clear. As for the option to introduce a collective bargaining agreement, this seems to be possible only for the public authorities falling within the scope of the collective bargaining agreement law, but this remains a small minority. As for the experiment, an application is very difficult, given the reference to a mandatory notification to a joint (sub)committee. The legislator apparently did not consider this, but it seems by no means inconceivable that a public company would ever wish to make use of such a system.