Brexit: time credit for employers in difficulty

Employers experiencing economic difficulties as a result of the Brexit will be able to propose a specific form of time credit to their employees. 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.

For which employers?

The specific time credit scheme (referred to as "temporary individual reduction of working hours" in the legislative text) applies to private sector employers who are experiencing economic difficulties as a result of the Brexit .

More specifically, 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 time credit 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 time credit scheme (temporary individual reduction of working hours);
• 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 Act of 6 March 2020;
• the desired temporary crisis measure, i.e. the specific time credit scheme (temporary individual reduction of working hours);
• the duration of the measure;
• 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 shall send 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);
• 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.

The Brexit time credit, what exactly is it?

The employer may propose to each full-time employee to reduce his working hours by 1/5 or to a half-time job for a period not shorter than 1 month and not longer than 6 months. It should be noted that for the reduction of working hours to a half-time job, an employee is considered to be a full-time employee if he is employed on a working hours basis at least equal to 3/4 of a full-time job in the company.

The period of reduction of working hours must be located entirely within the period of recognition as an employer in difficulty. This recognition period shall end no later than 21 March 2022.

Important! The period of reduction of working hours under the Brexit time credit is not deducted from the maximum duration of the ordinary time credit to which the employee is entitled.

Formalities

In the regulation, there are no rules on the procedure to be followed by the employer to propose Brexit time credit to the employee. The same applies to the procedure to be followed by the employee to reply to the employer. However, in order to avoid discussions, it is advisable to formalise the employer's proposal and the employee's reply in writing.

If the employee agrees, the parties must conclude a written agreement on the temporary reduction of working hours no later than the day on which the Brexit time credit starts (in accordance with Article 11bis of the Act of 3 July 1978).

Good to know! This agreement may be renewed without exceeding the maximum period of six months.

Entitlement to a benefit

During the period of reduction of his working hours under the Brexit time credit, the employee is entitled to a benefit payable by the National Employment Office ONEm/RVA. The amount of this benefit shall be equal to the amount granted in the case of ordinary time credit.

Important note! If the employer grants an additional allowance, the sum of the gross wage, of the allowance payable by the ONEm/RVA, of any supplement to this allowance on the basis of a regional regulation and of the additional allowance granted by the employer may not exceed the gross wage to which the employee was entitled before the introduction of the temporary reduction of working hours. In this respect, no account shall be taken of the adjustment of wages to the index and pay scale increases.

Benefit application procedure

The Brexit time credit benefit must be applied for using the form “Formulaire C61- Réduction individuelle temporaire des prestations en raison du Brexit”.

More info? On ONEm website.

What if the employer terminates the contract during the Brexit time credit?

The wage to be taken into account in the event of dismissal with payment of severance pay during the Brexit time credit is the wage to which the employee was entitled before the reduction of working hours.

Entry into force

This measure will be in effect from 22 March until 21 March 2022.

Sources: Act of 6 March 2020 on retention of employment following the withdrawal of the United Kingdom from the European Union, amended by the Act of 20 December 2020, 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.