After several postponements, the flexi-jobs will finally be introduced on 1 December - the legislation regulating the status has been published on 26 November.
In a nutshell
Flexi-jobs are a new form of employment enabling earning an additional income for anyone who has sufficient social security coverage through a main job. Many months, the status was subject to negotiation and it has been gradually adjusted thoroughly. Finally, the system has become less advantageous than originally intended, because labour law and collective agreements shall continue to apply. The good news is, that all remunerations (including e.g. sector-wide premiums) shall remain exempt from taxes and ordinary social security contributions.
Flexi-jobs are intended exclusively for employers of the catering sector and the temporary agency sector, the latter to the extent that the user comes under the catering sector. On the level of the individual employer there is no link to the registered cash register system. Even employers who do not (have to) use a registered cash register system can appeal to flexi-jobs.
Any particular individual can take on a flexi-job in the catering sector if four cumulative conditions are met:
- in the third preceding quarter there was a full social security coverage for at least 4/5 of the full-time working hours, with one or more other employers;
- the flexi-job cannot be combined with a regular employment contract for at least 4/5 of the full-time working hours with the same employer;
- the flexi-job is not carried out during a period covered by a severance pay or severance compensation benefit borne by that very same employer;
- the flexi-job is not carried out during a period covered by a period of notice served by that very same employer.
A worker may carry out a flexi-job with employer A in the first quarter of 2016 if he:
- had minimum a 4/5th employment with one or several employers other than employer A;
- does not have minimum a 4/5th contract with employer A in the first quarter of 2016;
- in the first quarter of 2016 is not covered by a severance pay or severance compensation benefit borne by employer A;
- in the first quarter of 2016 does not work during a notice served by employer A.
Evaluation of the 4/5th employment in the third preceding quarter
All periods of employment with other employers are taken into account, and within that period all work codes, both paid and unpaid/equivalent codes.
Excluded are net overtime and periods with insufficient social security coverage: periods in a flexi-job, as an apprentice, as a student with solidarity levy, as a young person limitedly liable to social security contributions (up to 31.12 of the year of his 18th birthday), as a flat-rate casual worker in agriculture and horticulture or the catering sector.
The evaluation is done by the NSSO on the basis of the career data base managed by Sigedis.
The result is included in the Dimona notification (see below).
Agreements for a flexi-job
An employment in a flexi-job must be covered by two agreements: a framework agreement and an employment contract. One framework agreement may cover several employment contracts.
The framework agreement
The framework agreement contains the intention of the parties to engage in an employment in a flexi-job and regulates the conditions under which that will be done, at least in terms of:
- the manner in which the employer will propose a flexi-job contract;
- the time limit to be observed between this proposal and the beginning of the actual employment;
- the jobs which will be the subject of the flexi-job;
- the agreed flexi-wage (the hourly rate);
- the condition of the 4/5th employment.
The employment contract
The actual employment in a flexi-job is regulated by a written or oral employment contract for a fixed term/specific work. These employment contracts may be consecutive without restriction. The variable working hours may fall outside the work schedules of the employment regulations and are not subject to the classic registration requirements (if part-time).
The type of employment contract directs the Dimona: a written employment contract results in one Dimona per employment contract/quarter, an oral employment contract in a daily Dimona.
Dimona per contract and per quarter (in case of a written employment contract)
A Dimona is submitted each time a (new) written employment contract for a flexi-job begins, and at least at the first actual employment of each quarter.
The Dimona cannot be late compared to the start time of the employment.
It contains the standard data (coordinates parties, JC), the data IN/OUT and the flexi-job code (FLX).
During the registration, the NSSO evaluates the timeliness of the Dimona and the condition of the 4/5 employment in the third preceding quarter.
The notification contains either the authorization (OK) or the prohibition (NOK) to carry out the flexi-job - that notification applies for the period included in the corresponding Dimona, but maximum until the last day of the quarter containing that date.
Dimona per day (in the case of an oral employment contract)
A daily Dimona is carried out each day covered by an oral employment contract, before the the working day begins.
A daily Dimona includes the standard data (coordinates parties, JC), the data IN/OUT, the flexi-job code (FLX) and the start/end time of the working day.
Also in this scenario, the Dimona must be submitted in time and the notification contains an authorization or a prohibition (in this case for 1 day).
The obligation of registration in this context only affects flexi-job workers and comes on top of the Dimona.
The employer must register and keep up to date the beginning and end of each worked time frame and for each flexi-job worker. This is done as in the reduction for fixed workers, more particularly via the registered cash register system or via the alternative on the portal site of the NSSO.
Flexi-job workers fall outside the classification of job positions and scale wages of the catering sector.
They are entitled to an hourly rate of at least € 8.82 (amount on 01.12.2015) regardless of their position.
The hourly rate is stipulated in the framework agreement, and the minimum hourly rate is indexed in the same way as the social security benefits.
In addition, flexi-job workers are subject to the general provisions of the labour law and the sectoral provisions of the catering sector.
Supplements payable on top of the hourly rate (e.g. shift premium, Sunday premium ... ) are also considered as flexi-wage and the same social security and tax exemption applies.
The flexi-holiday pay
On all amounts (both the hourly rate and the supplements) a flexi-holiday pay of 7.67 % is due.
Flexi-jobs within the social security system
The flexi-wage and the flexi-holiday pay are not considered as wages within the social security system - there is no worker deduction and no ordinary employer contribution. The liability to social security contributions is limited to a special employer contribution of 25%, payable under the conditions and within the time limits of the ordinary contributions.
Flexi-jobs within the tax system
No personal income tax or withholding tax is due on the flexi-wage and flexi-holiday pay.
The flexi-wage, the flexi-holiday pay and the special employer contribution of 25% are deductible as professional expenses.
Social rights of flexi-job workers
The employment in a flexi-job gives rise to entitlement in all social security sectors.
If a flexi-job is carried out without observing all of the legal conditions, the employment is considered as an ordinary employment contract. This has serious consequences:
- the scale wages of the catering sector will be imposed;
- the presumption of full-time employment will apply;
- the ordinary social security contributions will be payable;
- the allowance will be liable to ordinary personal income tax and withholding tax.
European "de minimis" rule
A company may not be granted more state aid than € 200,000.00 for any period of three years. With the introduction of the catering plan, a significant risk arises of some catering employers exceeding that limit, so that a part of the aid may be recovered. For the time being, the Belgian government will no longer organise inspections, but the principle remains unchanged.
Source: Act containing miscellaneous social provisions of 16 November 2015, Belgian Official Gazette of 26 November 2015
Author: Els Poelman