Employee who is taking a time credit or thematic leave: impact on the working time?

On the information sheet E56, the ONEM/RVA (National Employment Office) repeats the rules applicable to employees during a career break in the broad sense (time credit and thematic leave) and limits the possibilities of employing an employee during a career break on top of the agreed work schedule. The ONEM/RVA also announces that monitoring of these rules will be stepped up.

Specific rules for part-time employees

If one of your employees takes time credit or takes part-time thematic leave, his employment regulations will be adjusted. He will be transferred to a part-time employment scheme. Henceforth, the specific legislation for part-time employees will apply to this employee.

Unlike employees who work full-time for an indefinite period, this employee must have a written employment contract. In addition, the employment contract must mention the employee's employment scheme and work schedule. If the employee already had a written contract, an annex must be concluded.

A copy or an extract of this employment contract containing the identity of the employee, the employment regulations, the work schedule and his signature must be kept, either physically or electronically, on the location where the work regulations can be consulted.

As with all part-time employees, the following rules must be observed:

• A document containing the deviations from the fixed or variable work schedules must be posted and kept for 5 years. However, you are exempt from this formality if you have a time registration system.
• For employees working in a variable schedule, the individual work schedule must be communicated by posting a written notice at least five working days in advance (unless there is a sectoral deviation). This notice must be kept for 1 year. This notice must be available at the place where the work regulations can be consulted and must be kept for at least 1 year. 

Specific rules for employees who are taking career breaks

Previous position of the ONEM/RVA

Previously, the ONEM/RVA accepted that additional hours and overtime hours were worked provided that this does not occur systematically, that the employee has given his consent when they are worked on his usual day of inactivity and that they are compensated. 

Current position of the ONEM/RVA

Henceforth, the ONEM/RVA will limit the possibilities of exceeding the work schedule.

Overtime not allowed

The ONEM/RVA has changed its position and is now of the opinion that a career break scheme is incompatible with working overtime. Reminder: overtime is the hours worked outside the normal daily and weekly working hours (9 hours per day and 40 hours per week or a shorter duration as provided for in the collective bargaining agreement).

Example: a part-time employee has a fixed work schedule of 8 hours on Monday, Tuesday and Wednesday. He works 11 hours on Monday. 2h are overtime hours worked on top of the 9h.

Important! The ONEM/RVA also points out that voluntary ‘unmotivated’ overtime hours worked with the employee's consent are incompatible with a career break scheme. This allows employees who wish to do so, work more hours, while the various career break schemes are intended to better reconcile work and private life.

Additional hours limited

The ONEM/RVA now limits the possibilities for employees who are taking career breaks to work additional hours. As a reminder, additional hours are the hours worked outside the agreed or posted work schedule, but within the daily and weekly limits (9h/day and 40h/week).

Example: a part-time employee works on the basis of the following work schedule: 8h on Monday, Tuesday and Friday and 4h on Wednesday. On Wednesday 13 March, he works 8 hours. He worked 4 additional hours but no overtime.

The following conditions remain unchanged:

• additional hours may not be worked systematically;
• the employee must give his permission to be employed on a usual day of inactivity;
• additional hours must be compensated during the reference period and at least before the career break ends.

In addition, the ONEM/RVA adds that these additional hours cannot give rise to the payment of overtime. This additional condition limits the possibilities to work additional hours.

When does an additional hour give rise to the payment of overtime pay?

Part-time employees may work additional hours. Unlike overtime hours, these hours do not automatically give rise to overtime pay.

After all, a credit of additional hours does not entitle you to overtime pay. When this credit is used up, overtime pay is paid for the additional hours, although less than 9 hours per day and 40 hours per week are worked.

For an employee in a fixed employment scheme, the credit of additional hours without overtime is 12 hours per month. An employee with a fixed employment scheme is an employee whose work schedule is fixed or whose weekly or cyclical duration is fixed (but the work schedule is variable).

Example: an employee works 4 hours a week from Monday to Friday (fixed working hours) or an employee works 20 hours a week according to the posted work schedule (fixed employment scheme and variable schedule) or an employee works 25 hours a week in week A and 15 hours a week in week B (cycle).

If one of these employees with a career break works more than 12 additional hours per month, an overtime payment is due, even if these hours are compensated afterwards.

For an employee in a variable employment scheme, the credit for additional hours without overtime pay is 3h14 per week within the reference period, with a maximum of 168h. Employees in a variable employment scheme are the employees whose work schedule varies from week to week and is communicated in advance.

Example: An employee must work an average of 22 hours per week over a period of 4 weeks. His work schedule is communicated to him one week in advance by means of posting. He therefore has a credit of additional hours of 12h56 without overtime pay. The additional hours are the hours that are worked on top of the schedule that is posted, but also on top of the average weekly working hours. Schedule that is posted and worked.

• Week 1: 28 hours – 6 additional hours.
• Week 2: 16 hours
• Week 3: 30 hours – 8 additional hours.
• Week 4: 14 hours

Although the average weekly duration of 22 hours was maintained, this employee worked 14 additional hours. 1 hour and 4 minutes exceed the number of hours and are therefore subject to overtime pay.

Consequences of non-compliance with the principles in case of overtime and additional hours

If, following an audit, the ONEM/RVA finds that the employee is working overtime or additional hours during his career break that are not compliant with the above conditions, it will reclaim the career-interruption benefits already paid.

What about flexitime work schedule?

A part-time employee with a fixed work schedule can be employed in a flexitime work schedule. This is also the case when he is taking a career break.

Reminder: the conditions for the application of this flexitime work schedule (core time and flexitime etc.) must be laid down in the employment regulations and in the employment contract of the part-time employee.

Example: An employee works 20 hours a week in a flexitime work schedule. He may start working between 7am and 9am and stop working between 11am and 1pm. He is employed from Monday to Friday. He will have to see to it that his average weekly working time (20h) over the reference period is observed. 

How to comply with these instructions?

The legislation on part-time work is complicated. When combined with a career break, this becomes a very complex story. Together with you, our Legal Partners can review the work schedules and employment schemes of employees who are taking a career breaks. In this way, you comply with the instructions of the ONEM/RVA and you do not have to worry about future inspections.

Source: Information sheet E56 of the ONEM/RVA, "Compliance with the employment regulations during a career break/time-credit".