Transposition of Directive on transparent and predictable working conditions is just around the corner
20 Sep 2022
In 2019, Directive (EU) no. 2019/1152 on Transparent and Predictable Working Conditions (hereafter: “the Directive”) was adopted. This Directive introduces additional rights for EU workers to guarantee an adequate degree of transparency and predictability as regards their working conditions, while maintaining reasonable flexibility on the labour market. As such, the Directive breaks down into two parts: one broadens employers’ information obligation towards their employees and the other establishes a new set of minimum rights for each worker in the EU.
Member States had to transpose the Directive into national law by 1 August 2022. While Belgium did not meet this deadline, a draft transposition-act is currently making its way through the Chamber of Representatives. This newsletter is based on the text of the draft transposition-act, which – although unlikely – might still be (slightly) amended by the time it receives final approval in the Chamber.
The need for transparency on employment conditions
General information obligation
The draft transposition-act imposes a generic but broad information obligation on employers. In particular, it states that employers have to inform their employees on all main aspects of the employment relationship (identity of the parties, place of work, working time, position, remuneration, etc.), in writing and at the latest on the first day of employment. In addition, any change to the different aspects of the employment relationship must be communicated to the workers in writing as well, as soon as possible and no later than on the day the change takes effect.
In principle, employers are free to choose which instrument (work regulations, individual employment agreement, company policy …) they’ll use to inform their employees. However, to minimise employers’ administrative burden, they must provide information with a collective nature via the work regulations. When providing information with an individual nature, they can opt to use the employment agreement or another document. For most employers that already provide the above-mentioned information in writing to their employees via the individual employment agreement and work regulations, the impact of this new information obligation will be limited. However, companies should preferably verify whether their processes in this respect are fully compliant with these new provisions, certainly vis-à-vis the specific timing requirements.
In case of an assignment abroad
Currently, article 20bis of the Employment Agreements Act of 3 July 1978 states that, if an employee is assigned to work outside of Belgium for more than one month, the employer has to inform them – in writing and up front – on specific details regarding the assignment. The draft transposition-act abolishes article 20bis and instead details that, in case of an assignment abroad of longer than one month, the employer has to deliver the following information in writing, before the start of the assignment:
the country/countries abroad to which the employee will be assigned and the duration of the assignment;
the currency in which the employee’s salary will be paid;
if applicable, the benefits in cash or in kind that are linked to the assignment;
information on whether the employee’s return to Belgium is arranged and, if so, details on how it’s arranged.
Moreover, if the employee is posted to another EU Member State in execution of Directive no. 96/71/EC on the Posting of Workers, the above information must be supplemented with information on:
the remuneration to which the employee is entitled based on the host Member State’s legislation;
if applicable, all allowances related to the posting and all arrangements for the reimbursement of travel, accommodation and meal expenses;
link to the host Member State website that contains the necessary information on the working conditions for employees posted to their territory.
Employment conditions – minimum requirements
In addition to the above information obligations, the draft transposition-act contains a set of minimum requirements relating to the working conditions.
Parallel employment
Employers are not allowed to restrict their employees from taking up employment with another employer outside their normal work schedule, or to subject the employees to any unfavourable treatment because of such additional employment. This is of course notwithstanding exceptions provided for by law in this respect, such as the prohibition of (unfair) competition.
Transition to more predictable and secure working conditions
Employees with at least six months’ service with the same employer will be able to request to transition to a form of employment with more predictable and secure working conditions. An example could be the request to transition from an employment agreement for fixed duration into an open-ended employment agreement.
Minimum predictability of work
Part-time employees who work variable working schedules have to be informed on the applicable schedule at least five days in advance (soon to be seven days in advance). The draft transposition-act states that, if the employee in question hasn’t been timely informed, they may refuse to perform the work. Moreover, in case an employer cancels communicated working hours too late, it will be required to pay the salary for these cancelled hours.
Mandatory training
If an employer is required, by law or by collective bargaining agreement, to provide training that is necessary for an employee to carry out the work for which they were hired, employers must provide this training free of charge. In addition, the training has to be considered as working time and must moreover be organised during working hours, unless it can be demonstrated that the latter is impossible. The draft transposition-act also states that any training that is necessary for the employee to carry out the work cannot be the subject of a schooling clause.
Maximum duration probationary periods
Belgian labour only provides for the possibility of short probationary periods (three days) in three specific types of employment agreements: fixed-term (with the possibility for parties to agree on a longer probationary period), temporary agency work and student work. In order to ensure full compliance with the Directive, the draft transposition-act adjusts the relevant legal provisions by:
explicitly stating that, if a longer probationary period is included in a fixed-term employment agreement, its duration must be proportionate to the duration of the agreement itself and;
introducing the prohibition to include a probationary period in the renewal of a fixed-term agreement or agreement for student work for the same position and tasks (this prohibition currently already exists for temporary agency work).
Protection against adverse measures and dismissal
If an employee files a complaint against their employer with the aim of enforcing compliance with the rights provided for in the Directive, the employee in question is protected from any adverse measures or dismissal directly resulting from the complaint. If the employer fails to comply with this protection against adverse measures and dismissal, the employee is entitled to compensation for damages equal to six months’ gross salary.
Sanctions
The provisions laid down in the draft act on transparent and predictable working conditions will be included in the Social Penal Code and their non-compliance is mostly sanctionable with a level two sanction (either a criminal fine of EUR 400 - EUR 4,000 or an administrative fine of EUR 200 - 2,000) or a level three sanction (either a criminal fine of 800 - EUR 8,000 or an administrative fine of EUR 400 - EUR 4,000).
Conclusion
The upcoming transposition of Directive (EU) no. 2019/1152 on Transparent and Predictable Working Conditions into Belgian law will result in additional obligations for employers. The transposition-act will enter into force on the tenth day following its publication in the Belgian Official Gazette, which is expected in the following weeks.
In order to ensure compliance with these new obligations, companies should verify their current processes and adjust them accordingly. If you’re looking for more information on this EU Directive or for guidance on how to ensure compliance with its provisions, don’t hesitate to get in touch; we’d love to hear from you.
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