Brexit: temporary unemployment for employers in difficulty

Employers experiencing economic difficulties following the UK's withdrawal from the European Union (Brexit) can avail of a specific temporary unemployment scheme.

This is one of three temporary crisis measures provided for in the law of 6 March 2020 in favour of these employers and will be in effect from 22 March 2021 to 21 March 2022.

A brief explanation.

Employers concerned

The specific temporary unemployment scheme applies to private sector employers who are experiencing economic difficulties as a result of the Brexit..

These are the employers recognised by the Minister of Work as employers who are affected by a fall of at least 5 % in turnover, production or orders following the withdrawal of the United Kingdom from the European Union.

Terms of application

In order to apply the temporary unemployment scheme, the employer must:

• on the one hand, be bound, in principle, by a collective bargaining agreement (CBA);
• and, on the other hand, be recognised as an employer in difficulty.

Concluding a CBA and submitting an application for recognition

The employer in difficulty must be bound by a CBA concluded within the competent joint committee.

In the absence of such a CBA, he must be bound:

• if there is a trade union delegation in the company: by a company CBA that is lodged with the registry of the Directorate General Collective Labour Relations at the FPS Employment, Labour and Social Dialogue) at the latest 5 working days after the date on which the CBA was concluded.

Important note! If no result is achieved within 2 weeks after the start of the negotiations (initiated by the employer), the employer is only bound by an approved application for recognition as an employer in difficulty.

• in the absence of a trade union delegation in the company: by an approved application for recognition as an employer in difficulty or by a company CBA that is lodged with the registry of the Directorate General Collective Labour Relations at the FPS Employment, Labour and Social Dialogue) at the latest 5 working days after the date on which the CBA was concluded.

Content of the CBA

The CBA (in the sector or company) must state the following:

• the fact that it is concluded in accordance with Title 2 of the Act of 6 March 2020;
• the temporary crisis measure concerned, i.e. the specific temporary unemployment scheme;
• the duration of the complete suspension of the performance of the contract or the partial employment scheme;
• the amount of the supplement to the unemployment benefits paid to a worker who is temporarily unemployed;
• measures for the maximum retention of employment.

Content of the application for recognition and procedure?

The application for recognition as an employer who is experiencing economic difficulties as a result of the Brexit must state:

• the fact that it is drawn up in accordance with the Act of 6 March 2020;
• the desired temporary crisis measure, i.e. the specific temporary unemployment scheme;
• the duration of the measure;
• the supplement to the unemployment benefits paid to a worker who is temporarily unemployed;
• measures for the maximum retention of employment.

The company submits the application for recognition (by post or electronically) using a standard form to the competent department of the FPS Employment, Labour and Social Dialogue; this can be done at the same time as the CBA is lodged with the registry.

In this application, the employer must prove that it is affected by a fall of at least 5% in turnover, production or orders as a result of the Brexit; specifically, he must compare the data from one of the 2 months preceding the application for recognition with the corresponding month of one of the 2 calendar years preceding the application.

Note - The employer sends a copy of the recognition form and the economic reasons justifying the avail of the measure to the works council or, in the absence thereof, to the trade union delegation.

The further course of the procedure can be summarised as follows:

• the application is immediately forwarded to the 'company plans' committee;
• this committee issues a well-grounded opinion within two weeks of receiving the application;
• this opinion is immediately sent to the Minister of Work;
• this opinion is also sent to the employer, who informs the works council or, in the absence thereof, the trade union delegation as soon as possible of this;
• after receiving the opinion, the Minister of Work takes a well-grounded decision on the recognition (measure concerned, duration of the recognition, amount of the supplement to the unemployment benefits);
• the employer is immediately informed of this decision;
• the employer sends a copy of the recognition and the economic reasons justifying the avail of the measure to the works council or, in the absence thereof, to the trade union delegation.

The ONEm/RVA and the NSSO are also informed of the name of the employer thus recognised, the measure concerned and the start and end dates of the recognition.

Specific scheme of collective temporary unemployment

Economic unemployment for manual workers

During the period of recognition, the employer can make manual workers economically unemployed:

• under a scheme for complete suspension of the employment contract: the maximum duration is set at 8 weeks (instead of normally 4 weeks);
• or under a partial employment scheme; i.e. 'major suspension' scheme (either less than 3 working days/week or less than one working week per 2 weeks with at least 2 working days), the maximum allowed duration is set at 6 months (instead of normally 3 months).

The other rules of the (classical) general scheme of economic unemployment for manual workers apply unchanged:

• prior obligations (e.g. with regard to the granting of certain days off in lieu);
• formalities;
• etc.

In addition, the employer must pay a supplement to the unemployment benefits of at least 5.63 Euro per day of unemployment to the manual worker who has been made economically unemployed (unless this payment is borne by an occupational welfare fund).

More information is available on www.onem.be.

Economic unemployment for non-manual workers

During the period of recognition, the employer can make non-manual workers economically unemployed:

• under a scheme for complete suspension of the employment contract: the maximum duration is set at 8 calendar weeks per calendar year (instead of normally 16 calendar weeks);
• or under a partial employment scheme with at least 2 working days per week: the maximum duration is fixed at 13 calendar weeks per calendar year (instead of normally 26 calendar weeks).

The other rules of the (classical) general scheme of economic unemployment for non-manual workers apply unchanged:

• prior obligations (e.g. granting of certain days off in lieu);
• formalities (from the provisional notification to the (representatives of the) workers and to the unemployment office);
• etc.

In addition, the employer must pay a supplement to the unemployment benefits to the non-manual worker who has been made economically unemployed (unless this payment is borne by an occupational welfare fund). This supplement is at least equal:

• to the supplement granted to manual workers of the same employer who receive unemployment benefits for temporary unemployment for economic reasons;
• or, if there are no such manual workers, to the supplement provided for by the CBA concluded in the joint committee to which the employer would belong if he employed manual workers;
• or, in the absence of such a CBA, to the minimum amount of 5.63 Euro per day of unemployment.

Important note!

• The specific system of economic unemployment for non-manual workers is not taken into account for the (classical) general system of economic unemployment for non-manual workers.
• Unemployment benefits paid under the specific scheme for economic unemployment (manual and non-manual workers) are not part of the total amount of the unemployment benefits for which a contribution from the Fund for Closure of Companies is provided.

More information is available on www.onem.be.

Sources: Act of 6 March 2020 on retention of employment following the withdrawal of the United Kingdom from the European Union, Belgian Official Gazette of 25 March 2020; Royal Decree of 31 January 2021 setting the date of entry into force and removal from force of Titles 1 and 2 of the Act of 6 March 2020 on retention of employment following the withdrawal of the United Kingdom from the European Union, Belgian Official Gazette of 15 February 2021.