TIME CREDIT AND ADDITIONAL HOURS

An employee who takes time credit or thematic leave either suspends his or her employment completely or reduces his or her hours.

During the period of this time credit or thematic leave, the employee may, in principle, receive a career break allowance from the Belgian National Employment Office (ONEm/RVA).

An employee who reduces his or her hours becomes a part-time worker who is liable to work additional hours and, indeed, even overtime.

However, can the employee do this without jeopardising his or her time credit or thematic leave?

Additional hours and overtime

Additional hours are hours worked beyond contractual working hours but which do not exceed the normal maximum working hours set down by law or by the collective labour agreement. Overtime consists of hours worked beyond 9 hours per day or 40 hours per week, or any lower limits set down in a collective labour agreement (whether or not made binding by Royal Decree).

Since 1 February 2017, a distinction must be made between “standard” overtime, justified by an exceptional increase in work or an unforeseen need, and the “voluntary, negotiated” overtime referred to in new Article 25 bis of the Labour Act of 16 March 1971.

Principles to be respected

There is no legal prohibition on an employee who is taking a time credit (or thematic leave) and who has reduced his or her working hours to half-time or by 1/5th from working additional hours or overtime.

However, to ensure compliance with the rationale behind the system (combining work and personal life by reducing working hours while receiving a social welfare allowance as compensation) and given the regulations on part-time work, several principles have to be respected.

These principles, as set out in the Belgian National Employment Office’s technical directives, are as follows:

1. The additional hours or overtime may not be worked on a systematic basis. This must involve once-off situations or situations of force majeure (e.g. replacing a colleague who is unable to work due to short-term incapacity). This rule does not apply where additional hours or overtime are worked further to the provision of a home-based on-call service. Working additional hours or overtime is, in many instances, an inherent part of this type of work. However, no on-call service can be provided in this particular case at any time that coincides with the reduction in normal working hours. If additional hours or overtime hours are worked at other times pursuant to the on-call service, time off in lieu will have to be given.
2. Working additional hours or overtime during days of inactivity inherent to the career reduction requires the agreement of the employee.
3. Time off in lieu must be given in due course for excess hours worked, i.e. during the applicable reference period. This depends on the corresponding work regime and working hours.

A part-time employee who has worked additional hours does not, in principle, have any entitlement to time off in lieu. Nevertheless, if the employee is taking time credit or thematic leave, he or she will be required to take unpaid time off in lieu so that his or her pay does not exceed, during the period of the time credit or thematic leave, 50% or 80% of the employee’s full-time pay.

With “standard” overtime, the employee will be entitled to paid time off in lieu.

In any event, time off in lieu for additional hours and “standard” overtime must be given during the period in which working hours are reduced within the context of the time credit or thematic leave: the percentage of hours worked (50% or 80% of full-time working hours) must be complied with.

Time off in lieu for hours “worked in excess” is essential.

This is why an employee who is taking time credit or thematic leave may not work the “voluntary and negotiated” overtime provided for in Article 25 bis of the law of 16 March 1971. A particular feature of such overtime (in principle, 100 hours per calendar year) is that time off in lieu is not given but instead it confers an entitlement to payment of legal extra pay.

Extra pay

Working certain additional hours or “standard” overtime confers an entitlement to payment of extra pay (pay provided for in Article 29 of the Labour Act of 16 March 1971, 50% or 100% of normal pay). Because of this, the employee could receive a higher wage than his or her average monthly wage. Such extra pay can be combined with the career break allowance. The Belgian National Employment Office does not consider such extra pay as income arising from additional paid employment.

Source: Labour Act of 16 March 1971, legal provisions relating to time credit and thematic leave, Belgian National Employment Office’s technical directives.