Priority of your part-time workers in the event of a vacancy

Author: Anne Ghysels et Laurence Philippe
Date:

Some of your part-time workers may wish to increase their work regime. If one of your part-time workers requests so in writing, you are obliged to inform him of job vacancies for the same position and for which he has the required qualifications. If you do not inform him hereof, you will be required to pay an ‘accountability contribution’.

The details of this obligation dating from 1990 have now been clarified.

Part-time workers

Not covered by this priority:

  • workers who do not fall within the scope of the law on CLAs and joint committees;
  • interim workers;
  • workers employed by an recognized employer with a service voucher employment contract;
  • occasional workers.

Priority for a vacancy

Once a part-time worker has applied for a vacancy, the employer must notify him of any full-time or part-time employment of which the work regime is higher than his current employment. This notification must only be made when the increase will have a minimum duration of one uninterrupted month or will be of indefinite duration.

The adjustment of the work regime is done either by means of a new employment contract or by means of an annexe to the existing employment contract.

Notification by the employer

From the day following the day on which an employment became vacant, the employer has one month to notify the worker. It can be done by registered letter, by written notice of which the duplicate is signed for receipt by the worker or electronically with acknowledgement of receipt.

The employer must determine the term within which the worker must react and indicate it in the notification. This term can vary between 1 week and 1 month.

The notification must contain certain mandatory information:

  • a brief description of the job;
  • the duration of the contract;
  • the volume of work and the schedule;
  • the place of work.

A copy of this notification must be kept for 7 years in paper or electronic format.

Notification to the ONEm/RVA of the worker's refusal

When the part-time worker with maintenance of right who has received the notification of a vacancy refuses this job, the employer is obliged to inform the regional unemployment office of the ONEm/RVA. This notice must be sent by means of de Social Risk Declaration - scenario 6 of the month in which the part-time worker did not accept the full-time employment or the part-time employment with a higher average weekly duration.

Accountability contribution

The accountability contribution is a fine for an employer who does not comply with the priority and notification rules described above.

This fine will be effective from the 2nd quarter of 2020.

Which workers are concerned?

The employer could be liable for an accountability contribution only for: 

  • a part-time worker during the months for which the worker receives an income guarantee allowance (= worker concerned)
  • and employed under an employment contract concluded as from 1 January 2018.

When is the contribution due?

It is due from the quarter following the 4 quarters in which at least one additional hour was available and no part-time worker receiving an income guarantee allowance, employed by the employer, was granted the available additional hour(s) as a priority so that his average contractual weekly working time did not increase.   

‘Allocating additional hours’ means that the worker's average contractual weekly working time is increased either by adapting the employment contract or by replacing the employment contract with a new one.

When is the contribution not due?

The accountability contribution is not due for the worker for whom the employer can demonstrate:

  • That he must not communicate the vacancy;
  • That the worker was not eligible for the allocation of additional hours because the vacant employment was not the same job and he did not have the necessary qualifications;
  • That the worker was not eligible for the allocation of additional hours because these hours related to work during the same time periods as those of the worker concerned;
  • That the worker was employed in a different establishment unit than the one where the additional hours were available;
  • That he has offered all vacant full-time or part-time jobs to the worker concerned.

What is the amount of the accountability contribution?

The accountability contribution amounts to €25 per month per worker referred to above and is due for a full quarter. No pro rata rules are to be applied.  

When is the contribution no longer due?

The accountability contribution is no longer due as from:

  • Either the quarter in which all available additional hours are allocated to at least one of the workers concerned in such a way that his average contractual weekly working time has increased;
  • Or the quarter in which the employer was liable for the accountability contribution for the 4th consecutive quarter and no additional hours were available during these 4 previous quarters.

And more specifically?

  1. The NSSO and the ONEm/RVA exchange data quarterly and electronically on employers who employ workers receiving income guarantee benefits.
  2. On the basis of the data received from the ONEm/RVA, the NSSO draws up a list of employers who:
    • Employ part-time workers who receive an income guarantee allowance;
    • Have had their workload increased in the current quarter (T) compared to the average workload of the previous 4 quarters (Q-4 to Q-1). The average workload is calculated on the basis of µglob. This workload is assessed when the data for the current quarter are considered stable, i.e. 7 months after the start date of the original Dmfa;
    • Of which no worker concerned has had his average weekly contractual working time increased by at least one hour in the previous 4 quarters (Q-4 to Q-1).    
  3. The NSSO requests the employers on this list to justify the non-increase in the average contractual weekly working time of the worker concerned over the previous 4 quarters.
  4. The NSSO communicates to the General Directorate for Supervision of Social Legislation of the FPS Work:

        - the list of employers who have not provided the requested justification within one month after the date on which the NSSO invitation (cfr. 3) was

                       - the justifications referred to in 3)

                       - the list of workers concerned

  1. The General Directorate conducts audits and reviews the adequacy of the justification provided by the employer

 

The NSSO is responsible for collecting this contribution. It will provide a Dmfa declaration code as from the 2nd quarter of 2020.

 

 

Source: Royal Decree implementing the provisions of the Programme Act of 22 December 1989 relating to the priority of part-time workers in obtaining a vacant employment with their employer, Belgian Official Gazette 15.05.2019.