06.02.18 New in 2018 – summary of the most important hr-measures of the act on miscellaneous provisions regarding work
In addition to the amendments to the Program Act (see previous e-zine), the Act on miscellaneous provisions regarding work, published in the State Gazette on 5 February 2018, provides a lot of new social law measures.
The measures concern the employment of foreign employees, wellbeing at work, the electronic signature, measures regarding leave of absence, economic unemployment and mystery shopping, amongst other things
We selected some of the most important measures of this act which may impact your HR.
1. Act on Collective Bargaining Agreements
Extension and clarification that the wage and employment conditions at the industry level for employers and employees remain applicable in three cases of transition to a new Joint Labour Committee (JLC) or Joint Labour Subcommittee (JLS). These cases are the following:
- In case of modification of the scope of the competent JLC or JLS;
- In case of abolition of the competent JLC or JLS (New);
- In case a new JLC or JLS is established (e.g. two existing JLC’s merge into one newly established JLC) (New).
The continuity of the wage and employment conditions at the industry level is assured for (a) employees who were already employed by the company prior to the transition to another JLC or JLS and (b) employees who were hired by the company after the transition to a new JLC or JLS.
From now on, in case of modification of the scope of the JLC or JLS to which your company belongs as well as in case of abolition or establishment of a JLC or JLS, your company will have to continue applying the original wage and employment conditions at the industry level to all its employees (employed before as well as after the transition) until a specific CBA is concluded within the new competent JLC or JLS, until 1 January 2023.
2. Economic unemployment
Henceforth, the execution of the employment agreement can only be suspended for economic reasons in case the lack of work is due to reasons distinct from the will of the employer.
As an employer, you can only make an appeal to the regulation on economic unemployment in case the lack of work is due to reasons other than your will, which is not the case if you outsource the work to third parties. If you do not comply therewith, you will have to pay the employee his / her normal wage for the days during which you have outsourced the work - which is usually performed by the employee in question- to third parties.
3. The use of an electronic signature for the signing of the employment agreement and the electronic sending and saving of certain documents in the context of the individual employment relationship.
The Belgian legislation regarding the electronic signature and the electronic sending and saving of certain documents in the context of the individual employment relationship is adapted from the European regulation n° 910/2014 regarding electronic identification and trust services for electronic transactions in the internal market and the repeal of Directive 1999/93/EG.
The following elements are important:
- The electronic signed employment agreement is from now on equated to a paper employment agreement, signed with a handwritten signature, on the condition that this is signed:
- either through a qualified electronic signature or qualified electronic seal, which comply with the conditions as provided in the European regulation;
- or through an electronic signature which meets the proposed transparency conditions.
- From now on, electronic signed employment agreements and certain documents in the context of the individual employment relationship (e.g. pay slip, individual account, etc.) can be saved and sent:
- either by / through an electronic archiving service, which complies with the requirements as provided in the European regulation;
- or by / through the employer her/himself who exploits such service.
Neither the employer nor the employee can be forced to conclude an employment agreement through an electronic signature.
The date of entry into force will still need to be determined by Royal Decree.
Electronic signing, saving and sending of social documents will be facilitated and become more user friendly. As an employer, you will be able to exploit a qualified archiving service yourself, so that you no longer have to make an appeal to a third party / archiving service.
4. Replacement of an employee unable to work
Extension of the possibility to conclude a replacement agreement if an employee is hired to replace an employee who is unable to work and who, with the agreement of the advising doctor and the employer, partially resumes work and therefore temporarily performs adapted or other work. In the past, no other employee could be employed via a replacement agreement, as the employment agreement of such an employee was not suspended.
You can replace an employee who is unable to work and who is temporarily performing adapted or other work with the approval of the employer by means of a replacement agreement for the hours the employee who is unable to work is not performing work.
5. Mystery shopping
Introduction of the possibility for social inspectors to act as (potential) customers or (potential) employees to trace and identify infringements of anti-discrimination regulations in case of objective indications of discrimination.
Several safeguards are provided to ensure that mystery shopping occurs with respect for the fundamental rights of the targeted companies and persons:
- There must be a complaint or a notification and the indications of discrimination should be supported by the results of data-mining and data-matching. A fishing expedition is not allowed;
- The prior written agreement of the public prosecutor or the labour auditor is required and subsequently every action should be reported to them;
- The person involved or the persons who are subject to observations, must not be provoked.
These provisions come into effect on 1 April 2018.
From now on, social inspectors can identify discrimination in the labour market by, for example, performing mystery calls. This method will simplify the identification of breaches of anti-discrimination legislation by the social inspection and the gathering of evidence thereof.
Employees who are entitled to a notice period of at least 30 weeks are excluded from the right to outplacement if, within 7 days of receipt of the notice of dismissal, they prove that they are medically unable to follow outplacement by presenting a medical certificate from the treating doctor and, at the employer’s discretion, an additional medical certificate from a doctor appointed by the employer.
As an employer, you will not have to offer outplacement, nor will you be allowed to withhold 4 weeks of remuneration from the severance indemnity, in case your employee proves that he is medically unable to follow outplacement (e.g. employees who suffer from a terminal illness).