Belgium: Labour Deal 2022: Individual Training Right and Training Plan
Chapter 12 of the Labour Deal Act, titled “Investment in training”, introduces an individual training right for employees. This regulation is linked to the obligation for employers to draw up a training plan, which in turn can be found in Chapter 9 of the law.
1) Individual training right
The individual training right applies to those employers and employees covered by the scope of the collective bargaining law. The vast majority of the public sector is thus explicitly excluded. Employers with fewer than 10 employees (i.e. full-time equivalents) are also excluded. The Act also contains a system for calculating the number of employees, which we will not go deeper into.
The principle of an individual training right means that every full-time employee in a company with at least 20 employees will be entitled to five training days. As a transitional measure, this will still be four training days in 2023 (from 2024 it will be five). For employers with at least 10 but fewer than 20 employees, this number of mandatory training days will be reduced to one training day per year per full-time equivalent. As already stated, workers with fewer than 10 employees are excluded. We are talking about training days, but obviously not every training will take up a full day. The King, after advice from the National Labour Council, will be able to increase the number of training days, but he will also be able to set the rules regarding converting training days to hours.
Trainings followed in this framework should be paid for by the employer. While attending the training courses, employees receive their normal remuneration. In principle, training should take place during working hours. If this would not be possible, employees should receive their normal wage (as overtime pay) for the hours spent on training outside working hours.
Part-time employees or those not employed for a full year, will be entitled to a number of days in proportion to their employment by applying a formula. This formula involves multiplying the number of training days granted in the company for a full-time employee by the ratio of the person’s employment regime, which is again multiplied by the number of months the person is employed in the company divided by 12. Thus, a half-time worker employed for six months will in principle be entitled to: 5 x ½ x 6/12 = 1.25 training days.
Training days can be spent on formal and informal training. These terms are defined in detail, but for your convenience, we will stick to the distinction that formal training takes place in a place separate from the workplace and is given by an external trainer and/or organised by an external organisation while informal training can also take place in the workplace itself (or that has a clear link to the workplace such as a fair or conference) and is mainly organised by the employer itself.
The right to training and thus the training days should in principle be determined in a biennial sectoral collective bargaining agreement. The law provides for the minimum content of such collective bargaining agreements (including the number of days, the growth path, the practicalities, the type of training eligible). In principle, the sectoral social partners have until 30 September 2023 to conclude an initial collective bargaining agreement for 2023-2034. The social partners can (but must not) reduce the number of compulsory training days in their collective bargaining agreement, without allowing it to be less than two days. They are also not allowed to reduce the number of training days if a previous sectoral collective bargaining agreement or a provision at company level provided more than two training days for a given year. Unfortunately, this provision is open to many interpretations and it is unclear exactly what is not allowed.
The legislator has provided a fallback option if the joint (sub)committee does not conclude a collective bargaining agreement. In this case, the so-called individual training credit (with the training days) will be allocated directly to an individual training account. In this case, it will therefore be impossible to deviate from the minimum training days (4 in 2023 and 5 from 2024) in the negative sense. The individual training account will take the form of a form, to be kept in the employee’s personal file. This form will have to include, among other things, the number of remaining training days and must be updated as soon as possible after each training session. The law provides an option to keep this form in electronic form. Meanwhile, there are also voices calling for the government to create a digital application for this purpose.
The balance of unused training days can be carried over to the next calendar year. However, there is a reference period of five years during which a full-time employee must take an average of five training days per year. After these five years, the account is reset to zero. It is unclear what the consequences will be if the employee will not have followed enough training days at the end of the reference period.
Possibly, the answer is given in the provisions governing what happens to the training days at the end of the employment contract. If the employee is dismissed with notice, he/she will be entitled to use the training days during the notice period. This will not be possible in a dismissal with severance pay. A royal decree will determine how to value the unused training days so that they are taken into account when calculating the severance pay. Returning to the question in the previous point, it may well be that this compensation will also have to be paid to the employee if he did not take enough training days during the five-year reference period. If, finally, the employee has resigned himself or in the case of a dismissal for urgent reasons, the right to the unused training days is lost and in this case this loss should not be compensated either.
This Section enters into force on the day of its publication in the Belgian Official Gazette.
2) Training plan
To give further practical effect to the individual training right, the labour deal in Chapter 9 imposes an obligation on employers with at least 20 employees to draw up a training plan. This means that while employers with at least 10 employees but fewer than 20 employees will thus have to ensure that their employees attend at least one day of training per year on average, they will not have to draw up a plan. Employers with fewer than 10 employees will escape the dance entirely.
Like Chapter 12, Chapter 9 is limited to the employers and employees covered by the scope of the Collective Bargaining Act and thus basically applies only to the private sector. The entry into force of this Chapter is also notable: it enters into force retroactively on 1 September 2022.
The training plan is defined as “a document prepared either under paper, form or electronic form, in which the training courses are listed as well as the target group of employees for which they are intended”. The company will have to draw up such a plan once a year, before 31 March. The works council, or in its absence the trade union delegation, must be consulted on this. The employer must deposit the draft plan at least 15 days before the scheduled meeting with these bodies. The works council (or union delegation) must issue an opinion on it by 15 March at the latest. This means that, practically speaking, the employer will have to deposit a draft plan for consultation with the works council in the second half of February at the latest to allow for actual social consultation. Moreover, a sectoral collective bargaining agreement, filed at the latest on 30 September of the previous year, can determine the minimum content of the plans (for 2023, that deadline is postponed to 30 November 2022).
The training plan will have to pay particular attention to at-risk groups, e.g. the over-50s, and to bottleneck occupations. Moreover, the plan should pay attention to the gender dimension. The plan has a minimum duration of one year; if it is concluded for a longer duration, the question arises whether the obligation to draw up a training plan by 31 March each year will continue to apply. Possibly this could be resolved that the multi-year plan could be evaluated annually and possibly adjusted.
The training plan is kept within the company and should be available for employees’ perusal on easy demand. Given that the plan may take an electronic form, it could be kept on an accessible intranet or shared cloud environment, for example.
The employer will provide the training plan to the social inspectorate within a month of its entry into force. This obligation will be further developed by royal decree and will only come into effect on a date to be determined by royal decree.
The employer’s failure to draw up a training plan will not be enforced by a sanction (for now).