Law on Feasible and Manageable Work - Flexible and dynamic working hours (1)

The Law of 8 April 1965 on Work Regulations requires employees to work in accordance with the working hours set down in the terms and conditions of employment (work regulations). In a flexible working hours system, employees choose the start and end time of their working day as well as their break times.

This choice must be made in keeping with the flexible and core periods set down in the work regulations.

Although not legal, such a system was tolerated by the Labour Inspectorate (under certain conditions).

The Law on Feasible and Manageable Work gives a legal basis to the system and makes it more flexible. A new Article 20ter has been inserted into the Law of 16 March 1971 on Labour; it comes into force on 1 February 2017. Transitional provisions have been provided for companies that were already applying such a system.

The principle

The flexible working hours consist of:

- Core periods during which employees are required to be present and available to the employer within the meaning of Art. 19 of the Law of 16 March 1971 on Labour;

- Flexible periods during which employees can choose the start and end time of their working day as well as their break times.

A flexible working hours system differs from the other working time arrangements referred to in the Law of 16 March 1971 in that it is the employees that choose their working hours in line with the core and flexible periods set down in the collective labour agreement or work regulations.

While the flexible working hours system is not a system of “imposed” pre-determined hours, employees are required to take the employer’s legitimate demands into account with a view to ensuring effective organisation of work.

Employees are, to a certain extent, responsible for their own working hours and poor management could result in a reduction in pay or a loss of time off in lieu (below).

It should be noted that a flexible working hours system cannot be combined with a flexible working time system (Article 20bis of the Law of 16 March 1971 on Labour).

Employees concerned

Full-time and part-time employees alike with fixed hours can be included in such a system.

Part-time work with variable hours is not compatible with a flexible working hours system as working hours are communicated by the employer.

It should also be noted that, based on objective, non-discriminatory criteria, certain categories of employees could be excluded from the system.

Introducing a flexible working hours system

Implementation via a collective labour agreement or via work regulations

A flexible working hours system can be implemented:

• Via a collective labour agreement concluded in accordance with the Law of 5 December 1968 on Collective Labour Agreements and Joint Committees
• Or via an amendment to the terms and conditions of employment (work regulations).

There is no provision for a “cascade” system: the employer can choose between a collective labour agreement concluded in accordance with the provisions of the Law of 5 December 1968 on Collective Labour Agreements and Joint Committees or an amendment to its work regulations.

Content of the collective labour agreement or the work regulations

The collective labour agreement (CLA) or the work regulations (WR) will contain:

1. The average weekly working hours to be respected over the reference period, the length of which is fixed at 3 calendar months unless the CLA/WR fixes another period, up to a maximum of 1 year

2. The hours during which the employee must be present in the company: the core period

3. The variable hours, i.e. the flexible periods during which the employee chooses his or her start and end time and breaks. The daily working hours may not exceed 9 hours

4. The number of hours likely to be worked below or above the average working time limit set in the company, without the weekly working hours being able to exceed 45 hours (*)

5. The number of hours worked below or above the average weekly working hours which, at the end of the reference period, can be carried over, with a maximum of 12 hours (or more if provided for in a CLA) (*) (**)

(*) The maximum limits of 9 hours and 45 hours can be exceeded in case of an exceptional increase in work (Art. 25 of Law of 16 March 1971), force majeure (Art. 26 of Law of 16 March 1971) and in case of voluntary overtime (Art. 25bis of Law of 16 March 1971).

(**) The “12 (or more) hours carried over” can be “credited” to the “career account”.

Procedure using the work regulations

Where a flexible working hours system is applied in accordance with Article 20ter of the Law of 16 March 1971 on Labour, the work regulations will indicate:

• The start and end of the core and flexible periods and the duration of break periods;
• The maximum daily and weekly working hours;
• The average daily working hours;
• The start and end of the period during which the weekly working hours have to be respected on average;
• The terms and conditions for making up, during the reference period, any hours worked above or below the average weekly working hours;
• The specific sanctions in case of non-compliance on the part of the employee with the rules applicable to the flexible working hours system.

The information mentioned in the work regulations must be supplemented with an annex containing all of the rules applicable to the system of flexible working hours.

This annex forms an integral part of the work regulations.

Comment

By way of derogation from Articles 11 and 12 of the law of 8 April 1965, the provisions of a company collective labour agreement concluded pursuant to Article 20ter of the Law of 16 March 1971, which amend the work regulations and which contain all of the required information listed above are inserted in the work regulations once the collective labour agreement in question is filed with the registry of the General Directorate for Collective Labour Relations of the FPS Employment. The procedure for amending the work regulations must not therefore be used.

Source: Articles 68 to 75 of the Law of 5 March 2017 on Feasible and Manageable Work, Belgian Official Gazette, 15 March 2017.