National Labour Council OPINION No. 1.940 - Simplification and computerization of the procedure for wage assignment

Author: Author: Brigitte Dendooven
Date:

On 26 May 2015, the National Labour Council issued a favourable opinion on a draft law on the simplification and computerization of the procedure for wage assignment.

Wage assignment is an agreement by which a worker may transfer a debt - his right to receive a wage from his employer in order to endorse a specific debt contracted.

If the worker is unable to reimburse his debt (on time), a portion of his wage (the assignable proportion) shall be assigned by the employer to the worker's creditor.

When the worker (debtor) is informed that an assignment of the wage shall effectively take place, he may oppose such assignment within ten days, which results, in this case, in proceedings before the justice of the peace.

Wage assignment involves three stakeholders:

  • the worker (debtor): the "assignor" ;
  • the employer: the "assigned debtor" ;
  • the worker's creditor: the "creditor assignee".

The procedure for wage assignment is, in principle, governed by the Wage Protection Act of 12 April 1965 (Art. 27 to 35).

This Act provides that prior to being able to actually execute the wage assignment, the assignee must, among other measures, comply with the procedure provided by Article 28 of the Act of 12 April 1965:

  1. notify to the assignor his intention to execute the assignment;
  2. send a copy of such notification to the assigned debtor;
  3. send a certified copy of the deed of assignment to the assigned debtor (after the expiry of the 10 day period of opposition to which the assignor is entitled - Art. 29 of the Act of 12 April 1965).

All these notifications shall be made, under pain of nullity, by recorded delivery letter or by process server's instrument, the costs of which shall be borne by the party who incurred them (Art. 30 of the Act of 12 April 1965).

The proposed law submitted for review to the NLC amends the above-mentioned Article 30: the notifications made to the assigned debtor could be made through a procedure using electronic means.

The costs would remain payable by the party who incurred them.

Whatever the method used to transmit the notifications, the latter shall contain identical information.

In order to enable this computerization, the notifications of Article 28 shall be adapted to the extent that is it impossible to computerize a procedure involving the sending of annexes.

Moreover, the sending of annexes to the assigned debtor would be unnecessary and could be replaced by information in the paper forms or the electronic forms, under the assignee's responsibility.

Initially, the secure electronic delivery system would be set up between the creditor assignees and the National office for annual vacation (ONVA), before being extended to include other public social security institutions to which wage assignments are regularly notified.

Amendments to Article 28

The draft law plans to replace the sending by the creditor assignee of a copy of his letter to the assigned debtor by a confirmation issued by the creditor assignee stating that the notification of the letter of intent was sent to the assignor.

In addition, the creditor assignee would no longer have to send a certified copy of the deed of assignment to the assigned debtor. This sending would be replaced by a simple notification of the creditor assignee's decision to proceed with the execution of the assignment.

In order to execute the assignment, the assignee must:

Current text

Amended text

notify to the assignor their intention to execute the assignment (Art. 28,1°)

notify to the assignor their intention to execute the assignment (Art. 28,1°)

send a copy of the notification to the assigned debtor (Art. 28,2°)

confirm to the assigned debtor that the letter of intent was sent to the assignor (Art. 28,2°) NEW

send a certified copy of the deed of assignment to the assigned debtor (Art. 28,3°)

notify the assigned debtor of their decision to proceed with the execution of the assignment (Art. 28,3°) NEW

Amendments to Article 30

The current Article 30 provides that "Under penalty of nullity, all of the notifications referred to in Articles 28 and 29 shall be made by recorded delivery letter or by process server's instrument, the costs of which shall be borne by the party that incurred them".

The proposed law provides that only the notifications referred to in Article 28,1° and the notification through which the assignor opposes the assignment (Art.29) must always be done by recorded delivery letter or by process server's instrument, and therefore in paper format.

The other notifications referred to in Article 28, those between the creditor assignee and the assigned debtor may also be made through a procedure using electronic means. The information contained therein must always be identical.

To this end, a prior agreement containing the terms and conditions must be entered into by each assigned debtor and the creditor assignee.

When public social security institutions (such as the National office for annual vacation) act as assigned debtors, the agreement is subject to the mandatory prior authorization of the Sectoral Social Security and Health Committee.

When other public institutions or private sector companies act as assigned debtors, the specific terms of the procedure using electronic means shall be previously set by Royal Decree, after consulting the Privacy Commission.

Current text

Amended text

notify to the assignor their intention to execute the assignment (Art. 28,1°) – paper format

notify the assignor of their intention to execute the assignment (Art. 28,1))- paper format

send a copy of the notification to the assigned debtor (Art. 28,2°) - paper format

confirm to the assigned debtor that the letter of intent was sent to the assignor   - paper format or « electronic means if agreed upon -

send a certified copy of the deed of assignment to the assigned debtor (Art. 28,3°) - paper format

notify the assigned debtor of their decision to proceed with the execution of the assignment - - paper format or « electronic means if agreed upon -

The NLC issued a favourable opinion with regard to the amendments made by the proposed law.

In particular,

  1. the proposed law does not make any changes to the notification that must be made to the worker-assignor as part of a wage assignment procedure and to the content of the notification made to him. This notification is not to be computerized. The notifications between the creditor assignee and the assigned debtor (the employer or the public institution) will be simplified and will be able to be computerized if they have come to an agreement in this regard.
  2. The simplification introduced to these notifications will not result in a loss of information for the employer or the public institution concerned given that the sending of the copies currently provided for by Article 28, 2° (copy of the letter of intent sent to the worker-assignor) and 3° (copy of the assignment agreement) of the Wage Protection Act is not necessary. The proposed law also contains the guarantee that in the event of computerization of the documents to be sent, the latter shall have to contain identical information.

The NLC adds that it will be essential to require, as regards the possible computerization of these notifications, compliance with a procedure offering the necessary guarantees for the protection of the worker-assignor's privacy.

It also considers that the computerization of the notifications has benefits for the workers-assignors, the creditor assignees and the assigned debtors (employers or public institutions).

There will also be fewer risks of errors in the identification of the assignor. For the sake of legal certainty, the National Identification Register number or, failing that, the Social Security Database Office identification number will be used to identify the assignor. The origin and integrity of the content of the wage assignment, as well as the validity of the assignment, will be guaranteed by appropriate security techniques.

Source: National Labour Council opinion No. 1.940 - meeting of 26 May 2015

FR/NL

Author: Brigitte Dendooven

20/08/2015