In order to facilitate the introduction of economic unemployment for non-manual workers, the National Labour Council has concluded the collective labour agreement (CLA) No 147.
It entered into force on 18 March 2020 and is valid until 30 June 2020.
Employers who are temporarily unable to provide work for their employees due to a reduction in turnover, production, customer base or orders may, under certain conditions, have recourse to the system of temporary unemployment for economic reasons.
However, if the temporary unemployment is related to the coronavirus, it is best to apply for temporary unemployment due to force majeure. The formalities and the procedure for temporary unemployment due to force majeure have been considerably relaxed (see our Infoflash of 20 March 2020).
What's the purpose of CLA No 147?
A company in difficulty that wishes to introduce temporary unemployment due to economic reasons for its non-manual workers must, in principle, be bound by a sectoral CLA. If the company is not bound by such a CLA, it must be bound by a company CLA or an approved company plan.
From now on, companies which are not currently bound by a sectoral CLA, a company CLA or a company plan can invoke CLA No 147 to introduce economic unemployment for non-manual workers. As a consequence, companies no longer have to conclude or draw up a company CLA or a company plan. However, all other formalities remain in force (see below: "Application for recognition as company in difficulty" and "Other formalities").
- Sectors and companies that have not taken measures still have the possibility to draw up their own agreements or company plans.
- Companies which have submitted a company plan but are awaiting approval by the 'company plans' Commission of the FPS Employment are covered by the CLA No 147.
Company in difficulty
In order to apply the system of economic unemployment for non-manual workers, the company must be regarded as a company in difficulty.
A company is considered to be in difficulty when it is in one of the following situations:
- the company, in the sense of legal entity, is faced with a substantial decrease of at least 10% in turnover, production or orders in one of the four quarters prior to the application for economic unemployment, compared to the same quarter of the calendar year 2008 or one of the two calendar years preceding the application;
- in the quarter preceding the quarter in which the National Employment Office (ONEm/RVA) is notified that the company is in difficulty, the company, in the sense of technical business unit, legal entity or establishment unit, has a number of days of economic unemployment for its manual workers of at least 10% of the total number of days (manual and non-manual workers) declared to the NSSO;
- the Minister of Employment recognizes that the company is in difficulty on the basis of unforeseen circumstances that will lead to a substantial decline in turnover, production or orders in the short term.
Application for recognition as company in difficulty
In the current situation the employer will probably choose the 3rd option (the Minister of Employment recognizes that the company is in difficulty on the basis of unforeseen circumstances that will lead to a substantial decline in turnover, production or orders in the short term).
He will therefore have to submit an application for recognition as company in difficulty to the Director-General of the Directorate-General for Collective Labour Relations of the Federal Public Service Employment, Labour and Social Dialogue. The FPS Employment provides a template by means of which a company can apply to be recognized as company in difficulty. The application can also be submitted electronically.
Important note! The employer must prove that he is confronted with unforeseen circumstances that will lead to a substantial decline in turnover, production or orders in the short term. Evidence of the substantial decline must be provided by means of VAT returns or any other documentary evidence. The company must also provide evidence of a causal connection between the unforeseen circumstances and the substantial decline in turnover, production, or orders.
CLA No 147 makes it easier to invoke economic unemployment for non-manual workers. However, all other formalities remain in force:
- At least 14 days before the application of economic unemployment, notify the unemployment office of the ONEm/RVA where the company is located of a form (C106A) showing that the company fulfils the conditions for economic unemployment;
- On the day of the planned notification to the ONEm/RVA, communicate the notification to the works council or, if there is no works council, to the company's trade union delegation;
- Notify the workers at least 7 days in advance, not including the day of notification, of the introduction of economic unemployment and the conditions of its implementation: either by posting on the premises of the company or by written notification to any non-manual worker whose performance of the contract is suspended;
- Send the notice of the posting or the individual notification by electronic means to the ONEm/RVA on the day of the posting or the individual notification;
- On the day of the posting or the written notification to each worker, inform the works council or, if there is no works council, the trade union delegation of the economic reasons justifying the introduction of such a system.
Economic unemployment systems
The employer can choose between two systems of economic unemployment:
- the complete suspension of the performance of the employment contract: a maximum of 16 weeks per calendar year per full calendar week;
- partial employment comprising at least two working days per week: a maximum of 26 weeks per calendar year per full week.
In the case of a combination, over the same year, of systems of complete suspension of performance of the contract and systems of partial employment, two weeks in the system of partial employment shall count as one week in the system of complete suspension of performance of the contract.
Supplement of EUR 5
The employer is obliged to pay the workers concerned a supplement to the unemployment benefit for each day not worked.
Employers who invoke CLA No 147 to introduce economic unemployment for non-manual workers shall be obliged to pay a supplement of EUR 5 per unemployment day.
Important note! The supplement shall be at least equivalent to:
- the supplement granted to manual workers from the same employer and/or from the joint committee to which the employer belongs, who receive unemployment benefits for temporary unemployment due to economic reasons and who are employed in the same company, or
- in the absence of such workers, the supplement determined by the joint committee the company would belong to if it employed manual workers.