Temporary unemployment: which transitional measures are in force until 31.12.2022?

A law of 30 July 2022 provides for several transitional measures on temporary unemployment.

These are:

• on the one hand, a temporary adjustment of the conditions/formalities required to introduce economic unemployment;

• and, on the other hand, the temporary setting up of a specific procedure for the recovery of temporary unemployment benefits that may have been paid unduly paid to a worker. 

Economic unemployment for manual workers: adjustments

The adjustments regarding economic unemployment for manual workers provided for in the law of    30 July 2022 confirm the relaxations announced by the ONEm/RVA

They are applicable for the period from 01.06.2022 to 31.12.2022.

Obligation to resume work

The performance of the employment contract may be suspended completely:

• for 8 weeks; on expiry of this 8-week period, the employer must reintroduce the scheme of full employment for 2 full working weeks before a new full or partial suspension can take effect;
• or for a maximum of 12 weeks; on expiry of this 12-week period, the employer must reintroduce the scheme of full employment for 3 full working weeks before a new full or partial suspension can take effect.

Reminder! If a longer suspension period is provided for by Royal Decree for a sector, this longer suspension period must be applied.

Communications

At least 3 calendar days before the 1st planned day of unemployment, the employer must:

• inform the manual workers and the works council/trade union delegation of the introduction of temporary unemployment;
• send the prior notification to the ONEm/RVA.

Reminder! If a shorter notification period is provided for by Royal Decree for a sector, this shorter period must be applied.

Economic unemployment for non-manual workers: adjustments

The adjustments regarding economic unemployment for non-manual workers provided for in the law of 30 July 2022 confirm the relaxations announced by the ONEm/RVA

This law also introduces the possibility to provide for certain derogations in the social profit sector and for companies established after 31.12.2019.

These adjustments are applicable for the period from 01.06.2022 to 31.12.2022.

The concept of a company in difficulty

To prove that the company is in difficulty, the employer may:

• if he invokes a substantial decrease of at least 10% in turnover, production or orders, compare the decrease in one of the 4 quarters preceding the application for the introduction of the unemployment scheme to the corresponding quarter in 2019;
• if he invokes at least 10% temporary unemployment in the NSSO quarter before sending the form C106A (C106A-REGIME TRANSITOIRE/OVERGANGSREGELING), take into account the days of temporary unemployment due to force majeure ‘corona’ or ‘war in Ukraine’ (DMFA days code 77). 

Important note! The criteria for the concept of a company in difficulty may be derogated from:

• for companies belonging to the social profit sector (= companies covered by Article 1 of the Royal Decree of 18 July 2002 containing measures for the promotion of employment in the non-profit sector) and for companies established after 31.12.2019,
• during the period from 01.06.2022 to 31.12.2022,
• by Ministerial Decree (after advice from the management committee of the ONEm/RVA or the National Labour Council).

Communications

At least 3 calendar days before the 1st planned day of unemployment, the employer must:

• inform the non-manual workers and the works council/trade union delegation of the introduction of temporary unemployment;
• send the prior notification to the ONEm/RVA.

Undue temporary unemployment benefits: recovery

Undue payment of temporary unemployment benefits occurs when the employer, in order not to provide employment to a worker, wrongfully invokes:

• a case of force majeure (manual or non-manual workers),
• a technical fault (manual workers),
• bad weather (manual workers), 
• or lack of work for economic reasons (manual or non-manual workers).

The law of 30 July 2022 allows the ONEm/RVA, during the period from 01.07.2022 to 31.12.2022 (period that can be extended by Royal Decree), to recover benefits unlawfully paid to the worker from the employer instead of the worker.

The procedure is as follows:

• the employer must pay the worker concerned the normal wage for the days during which there was no suspension of the performance of the employment contract for one of the reasons mentioned above;
• the ONEm/RVA has the possibility to recover from the employer the gross amounts unduly paid to the worker;
• the employer may deduct from the net wage due to the worker the net amount of the benefits he must pay to the ONEm/RVA.

Source: law of 30 July 2022 containing various provisions on temporary unemployment, Belgian Official Gazette of 28 September 2022.