Employer’s choice

The draft Act states that the work regulations may provide alternating weekly working regimes. It is therefore up to the employer to decide whether this flexibility mechanism should be implemented within the company.

Full-time employees however have the right to request an alternating working regime regardless and will benefit from a protection mechanism when doing so.

Even if the alternating weekly working system is not (yet) in place the employer will therefore have to motivate their refusal in writing within one month following the request and cannot take negative measures (incl. dismissal) because of it.

This being said, the draft Act does not comment on the valid reasons that could justify this refusal, nor how it should be motivated. There is also no sanction for stereotypical or absent motivation. The final decision therefore remains with the employer.

Allowed flexibility

Alternating weekly working regimes are in principle organised on a two-week cycle during which it is possible to work up to a maximum of 9 hours a day and 45 hours a week (or lower limits set forth in the work regulations), provided that the work done in the first week is directly compensated by the work done in the consecutive second week, to respect the normal weekly working time on average.

For example, in a normal weekly working time regime of 38 hours, if an employee works 45 hours in week 1, they must work 31 hours in week 2.

By way of derogation, the reference cycle may cover a four-week period during the third quarter of the year (ie, the school summer holidays) to take account of the specific period of long holidays. This is also the case, outside the third quarter, if the employee encounters an unforeseen event.

The employee has the possibility to resume their original working time regime, provided that they inform the employer two weeks before the start of a new cycle.

Although mainly presented as a way of accommodating employees with childcare (eg, divorced parents with shared custody), the draft Act does not restrict its use to specific purposes. Employees could therefore request its benefit for any other reason, including mere improvement of their work-life balance. The same is true for unforeseen events allowing a longer reference cycle. These should be broadly interpreted and are not restricted to childcare-related events (eg, sick coparent).

In principle, the applicable daily (9h) and weekly (45h) limits applicable for alternating regimes cannot be exceeded through overtime, except in case of extraordinary increase in workload, urgent work, or voluntary overtime. In this latter case, the draft Act preparatory works state that voluntary overtime may only be performed during the ‘longer workweek’. This was however not translated into the draft Act wording so that this additional condition should normally be disregarded (preparatory works have no legal value).

Administrative burden

Alternating weekly working regimes must be introduced through the work regulations modification procedure, with mandatory provisions on the weekly working time to be observed in the cycle, the weekdays on and daily periods in which work may be performed, and the minimum and maximum working time per day and week.

Employees wishing to make use of it must submit a written request, only valid for a renewable period of up to 6 months.

If the employer agrees to the request, a written agreement must then be concluded at the latest when the employee begins to work in the agreed alternating regime. This agreement must specify the dates of the beginning and end of the period during which the alternating weekly regime is applied. The health & safety committee (or, in its absence, the trade union delegation) must be provided with a copy of this agreement upon request.

Copies of the request and agreement should be kept, during the period to which they relate, at the location where the work rules can be consulted and afterwards retained for 5 years. This retention period is reduced to 1 year for the agreement providing for a derogatory 4-week cycle. Failure to comply with these retention obligations is sanctioned by a level 2 fine (EUR 200 – EUR 4,000), multiplied by the number of employees concerned..

Protection mechanism

Requesting employees benefit from a double protection mechanism: refusal must be motivated in writing within one month, and request-related negative measures (incl. dismissal) are prohibited.

As explained above, the draft Act however does not comment on the valid reasons that could justify this refusal nor does it sanction absent motivation. The protection mechanism against adverse treatment is not developed either (protection period, burden of proof, lump-sum indemnity, etc.).

In case of adverse consequences, the employee will therefore have to invoke the already existing protection mechanisms (eg, manifestly unreasonable dismissal), which are not specifically related to the alternating regime. This is why the National Labour Council recommended to sanction the infringement on the dismissal ban with a lump-sum compensation of six months' pay to ensure the measure’s effectivity. This was however not included in the draft Act.

Conclusion

Although the legislator's initiative to ensure more flexibility and to promote a better work-life balance is to be welcomed, the current draft Act is not without flaws.

Firstly, it is stated that this measure is implemented to the employees’ benefit but the employer’s willingness remains, in practice, decisive. This is especially the case considering the absence of specific sanctions regarding the obligation to motivate any refusal. The considerable administrative burden, along with the criminal sanctions attached to it, and the protection mechanism could also have dissuasive effect, encouraging employers to make use of the existing flexible working schedules system instead whose variations, although less important, could nevertheless be sufficient to cover the flexibility needs of the employees concerned.

The draft Act also leaves some important questions unanswered. What about the social rights of employees who choose to work one day less in the shorter workweek, for example? Will they lose meal vouchers since these are granted per day worked? The same goes for rights to annual leave, career breaks, time credit, end-of-career arrangements, etc.

Although some grey areas remain at this stage, the general framework is ready to be implemented and the preparatory work can already start since the Belgian Parliament finally approved the so-called Labour Deal early October. As from when the Labour Deal enters into force (which depends on the publication date in the Belgian State Gazette), companies will thus have the possibility to effectively implement alternating weekly working regimes. If you have any questions on the above or if you are in need of assistance, feel free to contact one of our colleagues in the Employments & Benefits team. We are glad to assist.