Transparent and predictable working conditions (part 3): new rights for employees (and new obligations for employers)

Our two previous blogs explained that Belgium has finally transposed the EU Directive on transparent and predictable working conditions into national law. The new Belgian Act of 7 October 2022 (voted upon in parliament on 29 September 2022) has been published in the Belgian State Gazette of today (31 October) and thus enters into force on 10 November 2022.

The first blog (in this series of three) elaborated on the right of employees to request a form of employment that is more predictable and secure. The second blog focused on the employer’s obligation to inform its employees individually in one or more documents about the main aspects of their employment relationship.

In this third and final blog post, we examine three new rights that employees will be entitled to based on the Act of 7 October 2022, namely: the right to take on parallel employment, the right to mandatory training free of cost, and the right to minimal predictability of work for part-time employees with variable working schedules.

1. The right to take on parallel employment

Many employment contracts include an exclusivity clause which is a clause that prohibits an employee from carrying out any or a certain professional activity other than the one covered by his/her employment contract for the entire duration of the employment contract. This type of clause restricts the employee’s freedom of labour, and is only allowed under strict conditions. The new Act of 7 October 2022 further reduces the application of such exclusivity clauses by stipulating that an employer cannot prohibit an employee from taking up employment with (an)other employer(s) outside their work schedule or subject an employee to an adverse treatment for doing so, except where permitted by law.

The table below provides a summary comparison of the differences between the old regime and the new one.

Old regime	New regime
Principle: exclusivity clauses are permitted, if they are reasonable and not disproportionate and do not hinder the employee’s freedom of labour.	Principle: exclusivity clauses are prohibited, except where permitted by law.
Examples of exclusivity clauses that have been accepted by case law: – Clauses that include a prohibition limited to the performance of activities that may hinder the proper performance of the employment contract (e.g. prohibition to perform night shifts preventing the employee from executing his daytime job properly); – Clauses only prohibiting competing activities with another employer.	The explanatory memorandum to the new Act states that, by way of exception and for example, it is permitted by law to provide for an exclusivity clause that prohibits: – Fair or unfair competition by the employee during the employment contract; or – Obtaining, using, or disclosing a business secret; or – Engaging or cooperating in any act of unfair competition.
Examples of exclusivity clauses that have been rejected by case law: – Clauses that prohibit any professional activity outside the framework of the employment contract, whether lucrative or not; – Clauses that make the exercise of any professional activity, whether competing or not, conditional on the employer’s explicit consent. To determine the validity of an exclusivity clause under the old regime was a matter of reasonableness and proportionality, taking into account the employee’s function and the interference with his/her freedom of labour.

Takeaway

This legal reform reflects a paradigm shift, from authorisation (subject to strict conditions) to prohibition (apart from the exceptions provided for by law).

2. Mandatory training

Several legal and sectoral provisions require employers to provide mandatory training necessary for the employees to perform their job. For example, employees in the transport sector are required by law to participate in a training programme to receive their ADR-certificate, which training must be provided by the employer.

The new Act of 7 October 2022 specifically targets this type of mandatory training and provides numerous changes in favour of employees:

• Such training must be supplied free of charge by the employer;
• It will need to take place during the employee’s working hours. If training is organised outside these hours, then the employer will have to justify this on organisational grounds and will have to bear the full burden of proof in this regard; and
• The duration of the training must be considered as working time.

The new Act has also amended the existing rules regarding training clauses. As a reminder, the purpose of a training clause is to oblige the employee to reimburse the training costs borne by the employer if the employee leaves the company before a contractually defined period of time. In this regard, the previous system allowed training clauses to be drawn up for mandatory training related to bottleneck functions. However, the new system prohibits training clauses for such functions, given that EU Directive 2019/1152 requires that all mandatory training must be free-of-charge for the employee.

Takeaway

The EU (and subsequently the Belgian) legislator has stressed the principle of free mandatory training. This principle has now materialised in Belgian law with the modification of the rules surrounding training clauses, which can no longer be applied to such mandatory training and this without any exception.

3. Right to minimum work predictability

Part-time employees with variable working schedules already benefited from guarantees regarding the predictability and notification of their working schedules before the entry into force of the Act of 7 October 2022. The new Act reinforces these principles and broadens their scope of application. The objective behind the creation of these new rights is undoubtedly to protect part-time employees with variable working hours, given their delicate position in the labour market.

The new Act’s main new features can be summarised as follows:

Expansion of the scope of application	Part-time employees with variable working schedules who do not fall within the scope of application of the Act of 8 April 1965 (e.g. domestic workers) and flexi-job workers, are now also entitled to a series of protective mechanisms regarding work predictability: -These employees will need to be informed in advance of their working schedules, through a written and dated notice from their employer, which will determine their individual working schedule; and -Following the Labour Deal, this notice must be notified to the employees at least 7 working days in advance (which may be adapted by CBA and may not be less than 3 working days).
Right to refuse a work performance	Part-time employees with variable working schedules can now refuse to perform work (without any subsequent unfavourable treatment by the employer being allowed) when the work performance, either: – does not match a working schedule that was notified to them in time; or – does not fall within the daily period and the days of the week during which performances may be determined in accordance with the applicable work rules.
Right to compensation for late cancellation of a work performance by the employer	If the employer makes a late cancellation of a work performance that was scheduled in the announced working time schedule, then the employer will have to pay the employee “as if the work had effectively been performed”, to protect employees with unpredictable working schedules against any loss of income due to the employer’s action. However, the explanatory memorandum specifies that this protection does not apply to “force majeure”, given that this type of event would not reflect the employer’s intention to cancel the work performance.

Takeaway

Employers who employ part-time employees with variable working schedules will have to take into account the new rights that have been created for them, namely the right to refuse a work performance if the working schedule has been notified late or is not in line with the ‘framework’ included in the work rules and the right to remuneration for a work performance that has been cancelled late by the employer.

4. Conclusions and practical guidelines

The new Act creates new rights and strengthens pre-existing rights for workers, which creates equivalent obligations for employers.

Two crucial elements should be highlighted. On the one hand, the failure of the employer to comply with these obligations is subject to criminal penalties. On the other hand, the employee (or his/her representative(s)) filing a complaint due to the employer’s violation of these new rights will be protected against any unfavourable treatment or dismissal.

The employee can file such a complaint with the employer, the social inspectorate or the court.

If the employer adopts an unfavourable measure against the employee, or dismisses the employee or prepares to dismiss the employee following the filing of a complaint, unless for reasons not related to the complaint, then the employer will pay an indemnity equal to a lump sum of 6 months’ gross remuneration, or an amount equal to the damage that the employee has suffered.

Therefore, we advise employers to take the following action regarding these three new rights:

Right to take on parallel employment	– Ensure that any exclusivity clauses contained in the employment contract templates meet the legal grounds of justification.
Right to training	– Provide the necessary, mandatory training free-of-charge. Ensure that any training clauses exclude mandatory training from their scope of application.
Right to minimum work predictability	– Keep the new rights to minimum work predictability in mind, as well as the prohibition of adverse treatment and protection against dismissal relating to these rights.

Please do not hesitate to contact ALTIUS’ Employment team if you would like any further information regarding your obligations as an employer under the new Act.

Written by

• Esther Soetens

  Counsel

• Alexandre Calain

  Associate