Flexi-jobs from 2018 – General survey

Flexi-jobs are a new form of employment which makes it more easy to earn more money. It was introduced in the horeca sector in 2015. Since 2018 flexi-jobs are also allowed in the retail sector and flexible entry conditions apply for pensioners.

Which employers?

Flexi-jobs are only meant for employers of the next sectors/joint committees:

• bakeries, pastry shops and eating-houses connected to pastry shops (JC 118.03);
• food trade (JC 119);
• independent retail trade (JC 201);
• food retail trade (JC 202);
• medium-sized food companies (JC 202.01);
• horeca (JC 302);
• large retail companies (JC 311);
• supermarkets (JC 312);
• hairdressers and beauty care (JC 314);
• interim staffing sector, insofar interim work is performed for a user who comes under one of the aforementioned joint (sub)committees.

As regards the horeca sector there is no link to the registered cash register system on individual employer level. Also employers who do not use or are not obliged to use a registered cash register system can appeal to flexi-jobs.

Which workers?

In the authorized sectors two worker categories can execute a flexi-job:

• pensioners, who must not prove a principal activity
• persons who have not taken their pension and who must prove a principal activity

Conditions for both categories (pensioners and non-pensioners)

• the flexi-job cannot be combined with a regular employment contract for at least 4/5 of the full-time working regime with the same employer;
• the flexi-job is not performed during a period covered by a severance pay or a severance compensation benefit borne by the same employer
• the flexi-job is not performed during a period covered by a period of notice served by the same employer

Extra condition for non-pensioners

• in the third preceding quarter a full social security coverage for at least 4/5 of the full-time working regime, with one or more other employers, must be proved

Evaluation (for non-pensioners) of the 4/5 employment in the third preceding quarter

All periods of employment with other employers are taken into account, including all work codes, both paid and unpaid/equivalent codes. Are excluded: net overtime hours 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 horeca sector.

The evaluation is done by the NSSO on the basis of the career data base managed by Sigedis.

Formalities

A series of four formalities must be observed, each of them indispensable to make the flexi-job legally valid:

• a once-only framework agreement
• a specific employment contract for each employment
• a dimona per day or per quarter
• daily attendance registration

Covering agreements for a flexi-job

An flexi-job employment must be covered by two agreements: a framework agreement and an employment contract. The framework agreement contains the intention of the parties to engage in a flexi-job employment and regulates the conditions. The actual flexi-job employment is regulated by a written or oral employment contract for a fixed term/specific work.

Dimona

The type of employment contract determines the Dimona: a written employment contract results in a quarterly Dimona, an oral employment contract in a daily Dimona. The Dimona cannot be late compared to the beginning of the employment.

At the time of registration the NSSO evaluates whether the Dimona is in time, the pensioner’s statute and (for non-pensioned flexi-job workers) the condition of 4/5 employment in the third preceding quarter.

The answer contains either the permission (OK) or the refusal (NOK) to perform a flexi-job.

Attendance registration

The obligation of registration in this context only affects flexi-job workers and comes on top of the Dimona. For each flexi-job worker the employer must register and keep the beginning and end of each work performance. To that end he makes use of the registered cash register system, the alternative application on the portal website of the NSSO or his time registration system.

In practice the NSSO accepts a daily Dimona (in case of oral employment contract) to replace the daily registration, as beginning and end are included in the Dimona.

Flexi-wage and flexi-holiday pay

Flexi-job workers fall outside the job classification and wage scales of the sector. They are entitled to the base flexi-wage (hourly rate), irrespective of their position. The base flexi-wage is stated in the framework agreement and is indexed just like the social benefits.

Besides, flexi-job workers are subject to the general provisions of labour law and to the sectoral provisions of the competent joint committee. Supplements payable on top of the hourly rate (e.g. night premium, Sunday premium,...) are also considered as flexi-wages and the same social security and tax exemptions apply.

On all amounts (as well the base flexi-wage as the extra allowances) a flexi-holiday pay of 7.67% is due.

Flexi-jobs and social security

The flexi-wage and the flexi-holiday pay are not considered as wages within the social security system - no worker deduction and no ordinary employer contribution are applied. Social security liability is limited to a special employer contribution of 25%, payable under the conditions and within the terms of the ordinary contributions.

Flexi-jobs and taxes

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.

Sanctions when the conditions are not observed

If a flexi-job is performed 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 sector shall be imposed;
• the presumption of full-time employment shall apply;
• the ordinary social security contributions shall be payable;
• the allowance shall 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. The system of flexi-jobs may cause some horeca or retail trade employers to exceed that limit, so that a part of the aid can be recovered. For the time being, the Belgian government will no longer organise inspections, but the principle remains unchanged.

Source: Act of 16 November 2015 establishing various social provisions, as amended by the Programme Act of 25 December 2017 (Belgian Official Gazette of 29 December 2017).

Author: Els Poelman

06/02/2018