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Which activation measures for employment in critical industries?

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The government is constantly taking additional measures to contain the proliferation of the Coronavirus, and to limit the consequences for the economy. Yesterday (28 April 2020), the Special Power of Attorney Decree n° 14 was published in the Belgian Official Gazette with the aim to safeguard the smooth organization of work in the critical industries. After all, the employers belonging to these industries must have a sufficient number of employees at their disposal in order to continue business.

What are critical industries? 

Critical industries are the companies belonging to the so-called crucial industries and essential services, as defined in the Ministerial Decree on urgent measures to limit the proliferation of the Coronavirus.

What are the measures?

1.    The system of voluntary overtime shall be temporarily increased to 220 hours (i.e. 100 more than the initial provided 120 hours) for employers belonging to the critical industries. These overtime hours shall not be subject to overtime pay. Moreover, these overtime hours shall not be taken into account for compliance with the internal overtime limit. 

This measure is temporary and will apply as from 1 April 2020 to 30 June 2020.

2.    According to Belgian employment law, successive fixed-term employment contracts are, in principle, presumed to be employment contracts for an indefinite period. There are only a few exceptions to this principle. 

Now, it will additionally be possible to sign short successive fixed-term employment contracts (at least 7 days) for a period of 3 months (between 1 April and 30 June 2020) in the critical industries. In this way, employers in the critical industries will be able to hire extra staff in a very flexible manner. For their part, employees who are currently temporarily unemployed will be able to find flexible temporary employment in the critical industries (e.g. temporary unemployed employees in the agricultural and horticultural sector, nurses from certain hospital departments currently in temporary unemployment in residential care centers, etc.).

3.    Belgian employment law in principle prohibits the posting of employees. However,  there is  a limited number of very strict exceptions to this principle. 

As from now the following exception to the prohibition of posting employees, which is subject to fewer procedural rules than the classic exceptions, applies.

An employer may, in addition to its normal activity(ies), between 1 April and 30 June 2020, post its permanent employees to a user belonging to the critical industries in order to deal with the consequences of the COVID-19 epidemic in the user's company, provided that those permanent employees were already employed by the employer before 10 April 2020.

The conditions and duration of the posting must be set out in a written document signed by the employer, the user and the employee before the start of the posting.

The employee remains connected via his employment contract with his employer, but the user becomes jointly and severally liable for the payment of the social contributions, salaries, allowances and benefits that follow from this. Of course, the salary may not be lower than the salary received by an employee performing the same function in the user's company.

During the period in which the employee is posted to the user, the user is liable for the application of, among others, the provisions relating to the fight against discrimination, working time, public holidays, Sunday rest and well-being at work.

4.    Students will benefit from a neutralization of their working hours in the second quarter of 2020. For students, a quota of 475 hours per year applies. By not taking into account the working hours in the second quarter of 2020, students can be more easily employed in critical industries.

5.    Under certain conditions, asylum seekers will be granted access to the labour market if they have registered an application with the CGRS (Office of the Commissioner General for Refugees and Stateless Persons) by 18 March 2020 at the latest. They will have the opportunity to work during the application procedure. By doing so, the government hopes to compensate for the lack of labour force, mainly concerning seasonal workers. However, the employer must ensure shelter for the asylum seeker. 

6.    In companies belonging to vital industries, a current career interruption or time credit may be temporarily suspended in mutual agreement between employee and employer. The employee shall inform the NEO in writing (possibly via a model form to be provided by the NEO). During the period of suspension, there is no entitlement to allowances. After the suspension, the original career interruption shall continue for the remaining period and under the same conditions.

Furthermore, employees in career interruption or time credit who do not belong to a vital industy may be temporarily employed by another employer who does belong to a vital industry, so that possible labour shortages can be covered. The employee shall inform the NEO in writing of any new employment (possibly via a model form to be provided by the NEO). The employment contract with the other employer shall be fixed in writing and shall contain an end date until 31 May 2020 (which may be extended until 30 June 2020). To avoid that an employee would be financially disadvantaged, it is provided that the employee can keep 75% of his allowances during the duration of the employment contract.

So-called vital industries are defined in an annex to the Decree. It concerns the following joint labour committees (possibly to be adapted by the King):

  • Joint Labour Committee no. 144 for agriculture, insofar as the employee is exclusively employed on the employer’s own grounds; 
  • Joint Labour Committee no. 145 for the horticultural business, with the exception of the planting and maintenance of parks and gardens industry;
  • Joint Labour Committee no. 146 for the forestry undertaking;
  • Joint Labour Committee no. 322 for temporary work insofar as the temporary worker is employed by a user in one of the abovementioned industries.

Apart from the impact of the now widespread Coronavirus (COVID-19) on our daily personal life, companies in Belgium and around the world also face important difficulties and challenges on all levels of their day-to-day business.

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