In our first infoflash on annual leave we have repeated the general principles for the granting of days of leave. In this infoflash we will consider the procedure for determining periods of leave.
The days of leave in the company can be determined collectively (for all personnel members) in case of closing of the company, or individually by means of an agreement between the employer and each worker.
Except when the joint committee has decided otherwise, the determination of the dates of collective closing must result from a decision of the works council. In default of a works council or a decision of the works council, the periods of collective closing shall be determined in an agreement between, on the one hand, the employer and, on the other hand, the trade union delegation or, in default hereof, the workers.
The agreement can also regard the use of the balance of days of leave that should have been taken during the closing period.
The dates of collective closing of the company must imperatively be stated in the employment regulations. As soon as an agreement is reached on the determination of the dates of collective leave, the employer must post it up, send a copy to the workers and provide a copy to the directorate of the social legislation inspectorate that is competent for the company.
Once the leave is determined for all personnel members the worker can no longer choose another period of leave.
=> For workers of the company that have no right (any more) to paid days of leave or that have insufficient days of leave to cover the whole period of collective closing, we refer to our next infoflash on annual leave.
In default of a collective agreement the days of leave are determined in an individual agreement between the employer and the worker. When the employer invokes the necessities of the organisation to refuse a request for leave, he must in any case observe the granting rules prescribed by the legislation (cf. our first infoflash on annual leave). Neither the employer, nor the worker can impose the period of leave unilaterally.
=> In this respect it has been decided that a worker performs an act of recalcitrance that can justify serious grounds for dismissal without notice or compensation when he does not conform to the clearly expressed refusal of the employer to not grant leave on the days determined unilaterally by the worker.
Conversely, the worker does not commit a mistake when he takes leave on the days announced when he did not get a reaction on his request, provided that is was submitted in time. In fact, a presumption of agreement on behalf of the employer exists allowing the worker to take leave without the risk of his absence being considered an act of recalcitrance.
To avoid any dispute on the determination of the days of leave, it is recommended to include in the employment regulations the procedure that must be followed by the worker to request leave (e.g. prior request in writing that must be submitted in a reasonable term defined in the employment regulations). The employer also sees to it that his agreement (or not) with the requested days of leave is laid down in writing.
When the non-agreement continues the worker can appeal to the Social Inspection or even to the labour court that will settle the dispute (summary jurisdiction).
Sources: Royal Decree of 30 March 1967 determining the general terms and conditions for the implementation of the laws relating to the annual holidays of salaried workers, M.B. 11 August 1967; F. Verbrugge, Guide de la réglementation sociale pour les entreprises, Partena, Kluwer, 2014, no. 269-270.
Auteur: Catherine Legardien