Social/Legal News March 2022 Feedback from Previous Workshop • • • •
Relaxation of measures in the employment relationship published....................................2 Long-term sick employees: responsibilisation contribution for the employer (see slides) As expected, the Government's key index has again been exceeded……........................4 Measures regarding coronavirus-related unemployment after 31 March (see slides)
Published • • •
NSSO exemption for recovery of overtime arranged..........................................................5 Non-recurring result-related benefits (Collective Labour Agreement No. 90).....................6 Unemployment for blue-collar workers counts recognition of company restructuring.........9
Under construction • •
Government reaches agreement on Labour Deal.............................................................10 Withholding tax exemption for night and shift work is changing significantly....................15
Jurisprudence •
Wider protection of disabled workers against discrimination............................................21
Question of the month •
It was storming and this is felt in the employment relationship.........................................23
Amounts • • • •
Commuting: adjustment of De Lijn prices from April 1st....................................................24 Benefit in kind of interest-free and beneficial loans: reference interest rates published...25 Domestic business trips: new maximum tax flat-rate amounts from February 1St….........29 2022 social security contributions: financing of Asbestos Fund widened.........................34
Newsflash • • • •
Flemish Region: Flemish job bonus from 2022.................................................................36 Employment plan for employees aged ≥45s.....................................................................42 Annual report of Internal Department for Prevention and Protection in the Workplace....44 Reform of Plus Plans from January 1st 2022: regulations put in place.............................45
Talk to the expert •
European Whistleblower Directive (see slides)
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Relaxation of measures in the employment relationship published SD Worx Knowledge Centre Source Royal Decree of 17 February 2022 amending the Royal Decree of 28 October 2021 concerning the necessary administrative police measures to prevent or limit the public health consequences of the declared epidemic emergency relating to the COVID-19 pandemic, Belgian Official Journal of 17 February 2022 (ed. 2), 13.628.
From 18 February, the coronavirus barometer will be displayed in orange. This code entails a lot of easing, including for the employment relationship. The Royal Decree (RD) laying down these easing measures was published on 17 February. Mandatory teleworking abolished The teleworking obligation has been lifted since 18 February. The feedback sessions when a maximum of 20% of teleworkers may be present on the workplace will therefore also disappear. However, teleworking remains recommended for all employers and their employees, unless this is not feasible: • •
due to the nature of the job; or due to the continuity of business operations, activities or services.
Employers must continue to focus on the safety measures as set out in the Generic Guide, which includes rules on social distancing, adequate ventilation in the workplace and more. Some sectors have established sector-specific measures. Alongside the teleworking obligation, compulsory registration for teleworking has also been lifted. Registering for teleworking is therefore not required for March 2022. Team-building sessions as well as private company events in the workplace are allowed once again. Abolition of closing time for the hotel and catering industry and late-night shops There are no longer closing times for cafés, restaurants or late-night shops. Reopening of nightlife Discos and nightclubs may reopen their doors. Travel When travelling to Belgium, the colour-coding scheme used for the country of departure (red, orange or green) is no longer taken into account.
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From 18 February, travellers must have a valid vaccination, test or recovery certificate if they do not have their main residence in Belgium. The exemptions for cross-border workers and persons staying in Belgium or abroad for less than 48 hours have been retained. Furthermore, the ban on travelling to Belgium from a very high-risk country continues to apply. Travel from these countries is only possible for essential reasons, for example by transport staff, diplomats and so on. This concerns passengers who: • •
are not Belgian nationals; or do not have their main residence in Belgium.
Passengers must still complete the Passenger Locator Form (PLF) before departing for Belgium.
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As expected, the Government's key index has again been exceeded SD Worx Knowledge Centre
The index figures were published by FPS Economy and, as expected, the flattened health index for February 2022 again exceeded the Government's key index. This is the third time the threshold has been exceeded in a short period of time, with the other instances taking place August 2021 and December 2021. If inflation continues to rise at this pace, we expect another overrun this year. The timing of it, however, is difficult to predict given the fluctuating economy, with forecasts ranging from April to October. We hope to have more clarity as soon as the index/inflation data for the coming months is available. The current overrun means that the social security benefits as of 1 March 2022 and the public wages will increase again by 2% as of 1 April 2022. Sectoral minimum wages and remuneration linked to this government index will also be indexed at 2%. March 1st 2022 • • • •
For most index-linked social security benefits (including unemployment benefits, care credit and time credit benefits, sickness and disability benefits, child benefits, etc.) For the national guaranteed average minimum monthly income For certain sectoral minimum wages (including private hospitals and care homes, etc.) For the supplementary unemployment allowance with company allowance (bridging pension) (if the sector does not provide its own scheme)
April 1st 2022 • • •
For salaries and certain allowances of federal and regional public staff (including home and residence allowance, bilingual bonus, etc.) For certain sectoral minimum wages (e.g. sociocultural sector, etc.) For some index-linked amounts
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NSSO exemption for recovery of overtime now resolved SD Worx Knowledge Centre Source Royal Decree amending Article 19, § 2, of the Royal Decree of 28 November 1969 implementing the law of 27 June 1969 amending the decree law of 28 December 1944 on social security for workers
On 4 February, the Royal Decree (RD) governing the exemption from social security contributions for the recovery overtime hours worked by employees in 2021 and 2022 appeared. The exemption entered into force retrospectively on 1 July 2021. Beneficial recovery hours Employers from all sectors can again have 120 additional hours of voluntary overtime worked in 2022: the recovery hours. These are in addition to the statutory basic quota of 100 hours of voluntary overtime. These recovery hours: • • •
do not entitle the employee to overtime pay; do not entitle the employee to allocation of compensatory leave; and do not count towards the internal limit for overtime.
The salary for the recovery hours worked is not only exempt from social security contributions, but also not subject to tax. The employer may therefore pay the salary for the hours net. Employee agreement As with ordinary voluntary overtime, the employee must provide advance agreement in writing to work the recovery hours. The agreement is valid for a renewable period of six months. Tolerance Employees have already been permitted to work recovery hours since 1 July 2021. The NSSO tolerated employers not deducting social security contributions. However, there was no legal basis for this. With this Royal Decree, that basis has finally arrived. Consequences for the employer In 2022, employers will once again be able to use 120 recovery hours, free from social security contributions, personal income tax and overtime pay. Employees must agree to work recovery hours in writing in advance.
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Non-recurring result-related benefits (CLA No. 90): the new standard model SD Worx Knowledge Centre Source Collective Labour Agreement No. 90/4 of 22 February 2022 amending Collective Labour Agreement No. 90 of 20 December 2007 on non-recurring result-related benefits; Opinion no. 2.275 of 22 February 2022 Non-recurring result-related benefits – Evaluation of CLA No. 90
The social partners on the National Labour Council (NAR/CNT) have amended CLA No. 90 principally in terms of the objectives. As a result, employers must use a new standard model of enrolment agreement or collective labour agreement to introduce a plan on non-recurring result-related benefits in all situations. Employers must be able to adapt to this. The National Labour Council has therefore asked the Federal Public Service Employment, Labour and Social Dialogue to grant an administrative tolerance. Situation An employer may grant a collective salary bonus, also known as a CLA 90 bonus, to its employees. With this bonus, the employer rewards its employees for achieving a predetermined, objective collective target. This can be done in such a way that is advantageous from a social and fiscal perspective. This includes the following: •
•
No ordinary social security contributions are due. However, a solidarity contribution of 33% payable by the employer and a personal solidarity contribution of 13.07% are due No withholding tax or taxes are payable.
In 2022, the maximum social exemption is €3,558. The maximum fiscal limit is €3,094. The employer must always introduce the bonus plan with a CLA or an enrolment agreement. In doing so, they must follow the rules of CLA No. 90, among other things. Objectives The allocation depends on clearly definable, measurable and verifiable objectives being achieved. Individual objectives and objectives whose achievement seems certain at the time of implementation are explicitly excluded. The National Labour Council includes in its opinion a non-exhaustive list of objectives that may or may not be eligible. This concerns economic and financial objectives as well as those of a non-economic nature. Specifically, it concerns objectives: SD Worx Social/Legal News March 2022
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• • •
related to corporate social responsibility, environmental protection and ecology; to improve the company's performance as a whole and brand image; related to other societal challenges such as obtaining environmental or social responsibility certificates, labels or standards, social rights and environmental rights in the procurement policy and supply chain management.
The link between an objective and the price of the shares remains excluded. Additional conditions The Council attaches additional conditions to two of the possible objectives. Objectives related to well-being at work and safety The employer must have a general prevention plan and the annual action plan if the objective is to reduce: • • •
the number of occupational accidents; or the number of days lost as a result of occupational accidents; or absenteeism.
This condition now also applies to all objectives relating to the well-being of employees at work in general. Examples Taking part in activities: • • •
to keep employees fit; to promote safety within and outside the company; to promote a culture of prevention within the company. One such example relates to psychosocial risks and actions in the field of ergonomics.
From now on, the employer will also have to submit to FPS Employment, Labour and Social Consultation the general prevention plan and the current annual action plan together with the CLA or enrolment agreement. Until now, a sworn statement in the CLA or enrolment agreement had been sufficient. Mobility objectives Mobility objectives are possible. However, they must form part of the overall and broader vision of company transport plans when the employer is required to draw them up. The benefit granted is intended to be a non-structural and more ambitious incentive each year to switch to alternative mobility 'at the expense of' the car. Mobility-related objectives are only permitted if the employer grants a bicycle allowance to employees who cycle to work. The employer declares this in the plan. The amendments shall enter into force from 22 February 2022.
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Consequences for the employer Employers who wish to make use of this bonus plan must now use a new standard model. If you link the achievement of the bonus plan to the two objectives mentioned above, you must remember to use the new conditions. The digital e-bonus application will also be updated soon. For more information and assistance in drawing up a bonus plan, please contact our consultancy colleagues (Consulting@sdworx.com or KMOconsultancy@sdworx.com). How will this affect the public sector? This regulation only applies to employers who fall under the CLA law. As a result, this does not affect the majority of employers in the public sector. Some employers governed by public law do, however, fall under the scope of application of the CLA Act. Such employers include public transport companies, public credit institutions, housing corporations, VITO and so on. Please note that autonomous public enterprises have their own system of result-related benefits with their own procedures, terms and conditions. CLA No. 90 does not apply to them.
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Coronavirus unemployment for blue-collar workers in 2021 counts towards recognition of company restructuring SD Worx Knowledge Centre Source Royal Decree of 8 February 2022 amending the Royal Decree of 21 September 2020 amending the Royal Decree of 3 May 2007 on the system of unemployment with company allowance and the Royal Decree of 7 December 1992 on the granting of unemployment benefits in the case of conventional bridging pensions.
Companies with at least 50% blue-collar workers can be recognised as companies undergoing restructuring on the basis of frequent use of temporary unemployment (at least 20% of the total number of days for blue-collar workers reported to the NSSO). In principle, only temporary unemployment is taken into account for economic reasons. This notion had already been widened during the coronavirus pandemic. The days of coronavirus unemployment for blue-collar workers in 2020 were also included. From now on, the days of coronavirus unemployment for blue-collar workers in 2021 are also eligible. Companies qualifying for recognition as restructuring enterprises may, among other things: • •
allow their employees to go into unemployment with a company allowance (UCA) under more favourable conditions; benefit from an exemption from the first-job obligation.
This measure will enter into force on 25 February 2022. Consequences for the employer Companies with at least 50% blue-collar workers and high levels of coronavirus unemployment can rely on this rule for recognition as a company undergoing restructuring. This may be important for access to UCA and an exemption from the first-job obligation. If you have any questions about recognition as a company undergoing restructuring and its consequences, our legal consultants will be happy to help you. Contact them at consulting@sdworx.com.
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Government reaches agreement on Labour Deal SD Worx Knowledge Centre Source Press release dated 15 February 2022 – Government reaches agreement on labour market reforms | Pierre-Yves Dermagne (belgium.be)
The federal government reached an agreement on the Labour Deal on 15 February 2022. This includes measures to promote the level of employment. We only have limited information at this time. Nevertheless, we would like to give you an initial overview of these measures: •
Each employee receives an individual training entitlement to: o three days in 2022; o four days in 2023; and o five days from 2024.
•
Companies with at least 20 employees must draw up a training plan at least once a year.
•
Platform workers have received more clarity about their social status. If a number of legally defined criteria are met, there is a refutable presumption that they are employees. In addition, each platform will have to take out compulsory work accident insurance for all its platform workers, regardless of their status.
•
The Government is working towards a better work-life balance as follows: o
Employees may choose to work their weekly working hours in a four-day working week. They may also opt for a variable weekly schedule, where they alternate between working longer or shorter hours on a weekly basis.
o
Companies with at least 20 employees must make arrangements to guarantee a 'right to be offline'.
o
in principle, the period for publishing variable part-time work schedules has been increased from five to at least seven working days.
•
Employees who have been dismissed with a notice period may request a transition path from their employer. This can also be offered by the employer. Through such a process, employees can start working for a new employer on a voluntary basis during their notice period.
•
Employees who have been dismissed with a notice period of at least 30 weeks may devote the last third of this period to activities that enhance their employability on the labour market (outplacement support) while retaining their salary.
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•
Companies active in e-commerce can introduce night work between 20:00 and 00:00 via a collective labour agreement (CLA) with a trade union. This is possible without amending the working regulations. They may also introduce night work between 20:00 and 00:00 as a temporary measure as part of a one-off pilot project. Employees may join this on a voluntary basis. The maximum duration of this pilot project is 18 months.
•
The Government is installing a number of monitoring mechanisms to promote diversity in the workplace and the fulfilment of shortage occupations. In addition, an inter-federal platform has been set up with the regions to analyse and implement measures to tackle shortage occupations.
Note: This discussion is based on press releases issued by the federal government. The Council of Ministers will now first submit a draft bill to social partners for consultation. A full legislative process will follow. Amendments may still be put forward, which means the arrangements as described above may still change. This discussion is therefore subject to reservation.
Table of contents
Legal content 1. Invest in training 1.1. Individual training entitlement for each employee 1.2. Mandatory preparation of training plan 2. Better working conditions for platform workers 2.1. Social status 2.2. Mandatory work accident insurance 3. Better work-life balance 3.1. Four-day working week or variable work schedule 3.2. Ensuring disconnection 3.3. Term of publication of variable part-time work schedules 4. Increase in employment rate 4.1. Transition path during notice period 4.2. Devote part of the notice period to employability on the labour market SD Worx Social/Legal News March 2022
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4.3. Easier adoption of e-commerce 4.4. Monitoring of diversity and causes of labour market shortages
Legal content 1. Invest in training 1.1. Individual training entitlement for each employee The Government has introduced an individual training entitlement for each employee. These are as follows: • • •
three days in 2022; four days in 2023; and five days from 2024.
1.2. Mandatory preparation of training plan Every company with at least 20 employees must draw up a training plan at least once a year to enhance its employees' skills. The employer must pay particular attention to employees who have not received much training. The employer must always submit the plan to its works council or trade union delegation for advice. 2. Better working conditions for platform workers The Government is taking a number of measures to improve the working conditions of platform workers and to clarify their social status (employee or self-employed). This includes, for example, Deliveroo couriers and Uber drivers. 2.1. Social status There will be a list of specific criteria for assessing work in the platform economy. If (some of) the criteria are met, there will be a presumption that the platform worker is an employee. The platform does, however, retain the option of refuting the presumption if the employee is in fact self-employed. The Government was inspired by European legislation (which is still under development) for five of the eight criteria. 2.2. Mandatory work accident insurance
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In addition, each platform will have to take out compulsory work accident insurance for all its platform workers, regardless of their status. This obligation therefore also applies to self-employed platform workers. 3. Better work-life balance 3.1. Four-day working week or variable work schedule Employees may choose to work their weekly working hours in a four-day working week instead of over five days. They may also opt for a variable weekly regime. This means that the employee may work more hours one week and fewer hours the next. The initiative is always the employee's decision and shall be made using a written request to the employer. The employer must give their consent or justify why they do not approve the request. In order to avoid an employee being tied to their choice for a long period of time, they may decide not to renew their request, which runs for six months. 3.2. Ensuring disconnection After consultation with the trade unions, companies with at least 20 employees must make agreements via a company CLA to guarantee their employees a 'right to be offline'. Employers must explicitly commit to the fact that they do not expect employees to read or respond to messages outside working hours. In addition, employees and managers must be made aware of the prudent use of digital tools. 3.3. Term of publication of variable part-time work schedules In principle, the period for publishing variable part-time work schedules has been increased from five to seven working days. A sectoral CLA may shorten this period. 4. Increase in employment rate 4.1. Transition path during notice period Employees who are dismissed with a notice period may ask their employer for a transition path to a new job. The employer may also offer such a programme, but it shall always take place on a voluntary basis. Through the transition path, employees can start working for a new employer on a voluntary basis during their notice period. SD Worx Social/Legal News March 2022
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The former employer shall receive compensation from the new employer. At the end of the process, the new employer must offer the employee a permanent employment contract. 4.2. Devote part of the notice period to employability on the labour market Employees who have been dismissed with a notice period of at least 30 weeks may devote the last third of this period to activities that enhance their employability on the labour market while retaining salary. The financing of the employability-enhancing measures can be achieved using the employer's contributions that the employer owes during this period. 4.3. Easier adoption of e-commerce Companies active in e-commerce can introduce (temporarily) easier night work between 20:00 and midnight. This is possible: •
provided that a collective labour agreement is concluded with one trade union (but without amending the company's working regulations); or
•
via a one-off pilot project that employees can join on a voluntary basis. This pilot project has a maximum duration of 18 months.
The intention is, however, that employers pay additional salary or a bonus for night work carried out. 4.4. Monitoring of diversity and causes of labour market shortages The Government is installing a number of monitoring mechanisms to promote diversity in the workplace and the fulfilment of shortage occupations. More specifically: •
A new unit has been created within FPS Employment, Labour and Social Consultation to provide data to the joint committees every two years on diversity in their sector. A report is drawn up on the situation within the company on this basis. In the event of inexplicable differences between the results at sector and company level, the company must draw up an action plan to eliminate the differences.
•
The sectoral social partners will be asked to report on the problem of shortage occupations every two years. This report should explain the causes of shortages and suggest actions to address them.
In addition, an inter-federal platform has been set up with the regions to analyse and implement measures to tackle shortage occupations. SD Worx Social/Legal News March 2022
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Mini tax shift: withholding tax exemption night and shift work is changing significantly SD Worx Knowledge Centre
The mini tax shift thoroughly amends the regulation on the withholding tax exemption night and shift work. As an example, there will be a tightening of certain conditions in order to benefit from the exemption. From 1 April 2022, for example, an employer must grant a minimum hourly bonus of 2% for shift work and 12% for night work in addition to the contractual gross hourly wage. Current system in a nutshell Companies in which employees carry out night and/or shift work and receive a bonus for doing so may qualify for this withholding tax exemption. The exemption amounts to 22.8% of the taxable remuneration of all employees who work in a system of night and shift work. It is applied to the withholding tax deducted from the salaries and the shift (or night) bonuses. In order to benefit from the exemption, a number of conditions must be met. In the case of shift work, the employees concerned must carry out the work in at least two shifts: • •
of at least two employees who carry out the same work both in terms of content and scope; that follow on from each other during the day without: o there being an interruption between the consecutive shifts; o the overlap being more than a quarter of their daily work.
In the case of night work, this concerns companies in which employees work between 20:00 and 06:00 pursuant to the work schedule applicable in the company, with the exception of employees who: ▪ ▪
usually start work from 05:00; only work between 06:00 and midnight.
The employees concerned must be employed in shift or night work for at least one third of their working time pursuant to the work schedule in which they are employed. This is the socalled one-third standard. New rules as from 1 April 2022 The withholding tax exemption night and shift work is changing in the following areas:
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•
The exemption in the context of night and shift work is being split into two separate exemptions. This has consequences for: o the calculation of the one-third standard; and o collectivisation.
•
The calculation of the one-third standard in the context of night and shift work must be done per hour instead of per day. This principle is expressly included in the law in accordance with jurisprudence.
•
A break of a maximum of 15 minutes between two consecutive shifts is now explicitly permitted.
•
The condition to grant, in addition to the contractual gross hourly wage, a minimum bonus per hour of: o 2% for shift work (irrespective of whether it is a day or night shift); o 12% for night work. The above changes shall apply from 1 April 2022.
•
The bonus must be explicitly included in a CLA, the working regulations or the individual employment contract. This condition shall apply from from 1 April 2024.
•
The temporary employment sector may only apply the exemption if the client agrees to this. This additional condition shall apply from 1 October 2022 for both new and current temporary work assignments.
Note: This discussion is based on draft bills. Amendments may still be put forward, which means the arrangements as described above may still change. This discussion is also subject to publication in the Belgian Official Journal.
Table of contents
Context Legal content 1. Night work 2. Shift work 3. Collectivisation of the exemption 4. Calculation of the one-third standard SD Worx Social/Legal News March 2022
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5. Temporary employment sector: client consent
Context A number of conditions must be met for withholding tax exemption night and shift work. Most conditions have remained in place, but have been clarified or even tightened. As an example, the bonus must be a minimum amount from now on. The exemption for night and shift work has been divided into two separate exemptions. This has consequences for: • •
the calculation of the one-third standard; collectivisation.
Additional conditions have also been added for the temporary employment sector. Legal content 1. Night work In the case of night work, this concerns companies, recognised temporary employment agencies or certain public limited companies: •
where the work is carried out by employees: o in category 1 (for the calculation of the structural reduction of charges) or by statutory employees of certain autonomous public undertakings; o who work between 08:00 and 06:00, with the exception of employees who: ▪ ▪
•
usually start work from 05:00; only work between 06:00 and midnight. where those employees receive a bonus for night work.
Minimum bonus From 1 April 2022, the bonus must be a minimum of 12% of the contractual gross hourly wage. In addition, the bonus will only be eligible from 1 April 2024 if the allocation is included in a collective labour agreement, in the working regulations or in an employment contract. If this is not the case, the bonus is not eligible and the employer therefore loses the exemption. 2. Shift work Shift work concerns companies, recognised temporary employment agencies or certain public limited companies:
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•
•
•
where the work is carried out by category 1 employees (for the calculation of the structural reduction of charges) or by statutory employees of certain autonomous public undertakings; in at least two shifts: o of at least two employees doing the same work both in terms of content and scope; o that follow on from each other during the day without the overlap between the two being more than a quarter of their daily work; where the employees receive a shift bonus in this regard.
The overlap route of a maximum of one-eighth, as mentioned during the workshops in February, did not reach the final meeting. Minimum bonus From 1 April 2022, the bonus must be a minimum of 2% of the contractual gross hourly wage. In addition, the bonus will only be eligible from 1 April 2024 if the allocation is included in a collective labour agreement, in the working regulations or in an employment contract. If this is not the case, the bonus is not eligible and the employer therefore loses the exemption. Break between consecutive shifts Shifts must follow one another without interruption. There was doubt as to whether or not a break between two shifts caused the exemption to be lost. The law now explicitly allows a break of a maximum of 15 minutes between two shifts. The memorandum shows that the administration may accept a supplementary tolerance in very exceptional circumstances. The current administrative tolerance under the sanitary measures to combat the Covid-19 pandemic is therefore maintained. Shifts that do the same work both in terms of content and scope In the event of audits, this condition is the subject of much discussion. However, no clarification has been forthcoming.
According to the memorandum, the consultation with the stakeholders did not provide a workable proposal. The proposals would have resulted in either a drastic limitation or a significant extension of the scope. 3. Collectivisation of the exemption Since 1 January 2018, the withholding tax exemption night and shift work has been calculated at the level of the group of employees who are eligible for this exemption and no longer at the level of the individual employee. SD Worx Social/Legal News March 2022
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In other words, a lack of withholding tax to charge the exemption to an employee is offset by the surplus of withholding tax for another employee who enjoys this exemption for night or shift work. From now on, this collectivisation must take place separately: • •
firstly, for the group of employees for which the employer applies the exemption from the duty to transact pass-through payment of withholding tax on night work; and on the other hand, for the group of employees who are eligible for the exemption from payment of withholding tax on shift work.
4. Calculation of the one-third standard The employer may only apply the withholding tax exemption shift work, night work, real estate work and in the navigation system regime (navigation en système) for employees who, in accordance with the work schedule in which they are employed, do the following for the month in question for at least one third of their working time: • • • •
work shift work; work night work; carry out construction work on site; or work in the system navigation (navigation en système) regime.
The condition that the employee in question works one third of their working time in shift work or night work, or works one third of their working time in shift work on site in real estate or a system navigation (navigation en système) regime is called the one-third standard. Only the working hours for which a bonus is actually granted are eligible for the application of this one-third rule in the context of night or shift work. This is now explicitly included in the law. An accumulation of work in two or more of the above-mentioned types of exemptions for the same month is not possible for the assessment of the one-third standard. For the counting of the one-third standard, the calculation on an hourly basis has been the standard since 1 January 2022. The count may no longer be done on a daily basis. The law clarifies the existing legal text in accordance with the judgment of the Court of Appeal of Bergen of 21 October 2020. A Circular of 16 November 2021 recently confirmed this principle. 5. Employment agency sector: client consent Employment agencies may continue to make use of the system. However, the employment agency must now have the explicit agreement of the user. This condition shall apply from 1 October 2022, both for new and current temporary work assignments. This adjustment is intended to encourage employment agencies to make binding arrangements with their clients before they request the application of this exemption. This will SD Worx Social/Legal News March 2022
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allow them to provide evidence that all the conditions for application have been met in the event of an audit. This explicit agreement is only required for the application of the exemptions for: • • •
night work; shift work; construction work.
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Wider protection of disabled workers against discrimination SD Worx Knowledge Centre Source Court of Justice 10 February 2022 C-485/20
A recent ruling of the European Court of Justice specifically deals with an employer's obligations with regard to a disabled worker. In some situations, the offer of another job may be necessary. Reasonable adaptations Discrimination against disabled persons is prohibited by law, including in the workplace. European and Belgian legislation even obliges the employer to take active steps to combat discrimination against disabled employees. For example, an employer must make all reasonable adaptations to keep a disabled employee in employment. These concern both effective and practical measures. Think, for example, of making changes to the workplace, the equipment or the task distribution. Parttime work, teleworking or a progressive resumption of work are also possible options. As long as the disabled employee is competent, able and available to perform the essential tasks of the job, the employer must support the employee concerned with appropriate measures. Please note that the 'reasonable adaptations' are only mandatory as long as they do not constitute an unreasonable burden for the employer. Transfer to another position Whether an employer has made the necessary 'reasonable adaptations' is a concrete factual matter. The courts have already addressed the concept of 'reasonable adaptations' in a highly diverse manner. They often only judged within the context of the employee's position. However, the European Court of Justice has recently extended the concept of 'reasonable adaptations'. Another position may also be a reasonable adaptation. The facts make things clear. A maintenance employee on the railways was affected by a heart condition shortly after joining the company. He was fitted with a pacemaker and was also recognised as a person with a disability. It became impossible for them to continue working in their role, as a pacemaker cannot be in the vicinity of the electromagnetic radiation present near railway lines. The employee was not assigned another position, but was instead dismissed. In the proceedings following the dismissal, the European Court was asked whether the employer should also have considered a transfer to another position as a 'reasonable adaptation'. The Court replied in the affirmative, clarifying that a reasonable adaptation could also involve a transfer to another position. An important nuance here is that the reasonable adaptation may not be a disproportionate burden for the employer. This is also a factual issue. In doing so, we take into account the SD Worx Social/Legal News March 2022
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financial costs and resources, the size of the company and the possibility of obtaining public money or other forms of support. And, of course, there must be a suitable vacancy for the person concerned. Conclusion The reasonable adaptations that an employer must make to keep a disabled employee in work are not limited to the position held. A transfer to another available position in the organisation may also be an appropriate measure, insofar as this is not a disproportionate burden for the employer. Consequences for the employer If a disabled employee can no longer perform their job due to their disability, you must check which reasonable adaptations you can make. You should also consider a transfer to another available and suitable position. Failure to take these appropriate measures may result in liability for damages. How will this affect the public sector? The consequences of this judgment apply to both the private and the public sector.
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It is storming and this is felt in the employment relationship SD Worx Knowledge Centre
You will no doubt be aware that on Friday 18 February, an unprecedented storm ravaged our country. Schools closed their doors unexpectedly and sent students home early. Rail traffic was partially shut down. The way home from work could have become very dangerous. And we haven't even mentioned the material damage that may have occurred. What can the employer and employees arrange to ensure everything runs smoothly (and safely) in such a situation? •
Closing schools and childcare facilities
If an employee cannot arrange childcare for their children and have to pick them up, they are entitled to a guaranteed daily salary for the working hours lost. •
Getting home safely
Employees who fear that they will not be able to get home safely due to trains being cancelled or because of dangers on the road may, in consultation with the employer, go home earlier, thereby taking paid or unpaid leave or recuperation. They can also agree to make up any working hours lost at a later date. •
Damage to property
Those who are informed that there is material damage to their property and cannot therefore continue their work are entitled to a guaranteed daily wage for the working hours lost. For the following days, when their presence at home is required, they may invoke leave for compelling reasons (maximum of 10 days). This is an entitlement to absence without retention of salary. Sectoral arrangements may, however, provide for payment. •
Work cannot be continued due to bad weather
Naturally, there may be situations in which the work cannot continue due to bad weather. Those who have gone to work normally and are unable to continue their work due to the storm are entitled to guaranteed daily pay (incomplete working day). This is an exceptional situation in which the parties are best advised to seek practical solutions in consultation with each other.
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Commuting: changes to De Lijn prices from 1 April SD Worx Knowledge Centre Source Various media
In a previous workshop, we informed you about the changes to train ticket prices from 1 February 2022. De Lijn will amend its prices from 1 April 2022. This may have an impact on the employer's contribution to employees' commute. Amendments to the employer's contribution towards the commute Other public transport Since 1 July 2020, the reimbursement of transport costs to employees who travel by metro, bus, tram or waterbus is no longer subject to a minimum distance. A distinction is made between the following: •
•
The price in proportion to the distance: The contribution is equal to the employer's subsidy for the price of the train travel card, up to a maximum of 75% of the actual travel costs; The price of a single journey: The contribution is equal to 71.8% of the price that the employee actually pays, up to a maximum of the employer's contribution to the price of the train ticket for a distance of 7 kilometres.
De Lijn will make changes from 1 April 2022. Any price rises introduced by De Lijn will therefore give rise to adjustments. TEC does not foresee any adjustments to their prices in 2022. Many sectors have different provisions, so it is important to consult the sectoral collective labour agreement. Consequences for the employer De Lijn's prices will change from 1 April 2022. As an employer, this may have an impact on your contribution to your employees' commute. How will this affect the public sector? Government bodies are also facing the rise in prices. You should check the information set out in the legal status rules or staff status for each government body to determine the actual impact.
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Benefit in kind of interest-free and beneficial loans: reference interest rates published SD Worx Knowledge Centre Source Royal Decree of 6 February 2022 amending the Royal Decree on the Income Tax Code 92 with regard to benefits in kind in the event of the granting of an interest-free loan or a loan at a reduced interest rate, p. 11169.
The tax authorities have announced the reference interest rates that apply to interest-free and/or beneficial loans granted by the employer from 1 January 2021. The publication of these percentages allows the employer to review the benefits in kind for these loans on a retroactive basis. Taxable benefit Employers sometimes provide their staff with interest-free and/or beneficial loans. For tax purposes, this constitutes a taxable benefit in kind equal to the difference between: • •
the annual reference interest rate, set per type of loan; and the interest rate charged by the employer to the employee borrowing the funds (or company manager).
The reference interest rates change annually and vary depending on the type of loan. Through publication in the Belgian Official Journal, the tax authorities publish the percentages that apply to loans granted from 1 January 2021. More specifically, the following reference interest rates apply:
Mortgage loans:
Reference interest rate
- Repayment guaranteed by a mixed life insurance policy
1.34% (instead of 1.41%)
- Other loans
1.29% (instead of 1.36%)
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Non-mortgage loans with no specified maturity
6.48% (instead of 10.20%)
Fixed-term non-mortgage loans (monthly loan-to-value ratio):
- Loans to finance the purchase of a car
0.05% (instead of 0.04%)
- Other loans 0.11%
Consequences for the employer Current loans: The publication of the percentages allows the employer to review the benefits in kind for loans granted from the 2021 income year on a retroactive basis. Note: This review is not considered on an annual basis for all types of loans. New loans The new percentages shall also be applied for loans granted from the 2022 income year, pending the publication of the correct percentages for 2022. The publication of this information is scheduled for early 2023. How will this affect the public sector? If an employer in the public sector were to grant an interest-free or cheap loan to its staff, the same rules apply as in the private sector.
Table of contents SD Worx Social/Legal News March 2022
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Legal content 1. Principle 2. Benefit in kind 2.1. Calculation 2.2. Review 3. And what about the NSSO?
Legal content 1. Principle The employer may grant an employee (or company manager) a loan: • •
at an interest rate that is lower than the current interest rate; or without interest.
This results in a taxable benefit in kind for the employee (or company manager). 2. Benefit in kind 2.1. Calculation The taxable benefit is equal to the difference between: • •
the annual reference interest rate, set per type of loan; and the interest rate granted by the employer to the employee borrowing the funds (or company manager).
The reference interest rates change annually and vary depending on the type of loan. The percentages applicable to loans granted in 2021 were published today (14 February 2022) in the Belgian Official Journal. 2.2. Review The publication of the percentages allows the employer to review the benefit in kind for 2021 on a retroactive basis. Note: This review is not considered on an annual basis for all types of loans. Fixed-rate mortgage loan
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The benefit is equal to the difference between the reference interest rate for the year in which the loan was taken out and the interest rate charged to the borrower. For a loan granted in the course of 2021, the employer must therefore review the benefit following the publication of the reference interest rate at the beginning of 2022. From then on, the percentage is definitively fixed throughout the term of the loan. Non-mortgage loan – fixed term Here, too, the taxable benefit is calculated on the basis of the reference interest rate for the year in which the loan agreement was concluded. Once definitively established, this interest rate will continue to apply throughout the term of the loan. Non-mortgage loan – no specified term The reference interest rate of a specific year applies to the sums available to the borrower during the same year. Only for this type of loan must the employer review the benefit in kind each year. 3. And what about the NSSO? If the employer grants a loan to an employee at favourable conditions (interest-free or at a reduced interest rate), there is also a salary benefit for the NSSO. No ordinary social security contributions are due. However, there is no specific arrangement for the NSSO treatment of this benefit. The benefit therefore corresponds to its actual value: the difference between the allocated interest rate and the market interest rate. This compares what the employee repays to their employer with the monthly repayments that they would have to make as a loyal customer with their bank for a loan of the same amount and with the same term.
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Reimbursement for domestic business trips: new maximum tax flatrate amounts from 1 October 2022 SD Worx Knowledge Centre
An employee who travels within Belgium on behalf of their employer in this respect incurs costs. The employer may reimburse costs for a domestic business trip on a flat-rate basis. From 1 February 2022, the tax flat-rate amounts will increase following an index adjustment. The following amounts apply from 1 February 2022: • •
Day allowance: €18.11 per day Accommodation costs: €135.85 per day
If the employer respects these amounts and the applicable conditions, the tax authorities consider these allowances as a cost proper to the employer. The allowance then constitutes a non-taxable benefit for the employee and a tax-deductible business expense for the employer. Consequences for the employer Provided that all conditions are met, you may grant your employee a higher flat-rate amount as reimbursement of expenses incurred during domestic business trips from 1 February 2022.
Table of contents
Legal content 1. Tax rules 1.1. Amounts 1.2. Conditions 1.2.1. Fixed meal or daily allowance 1.2.2. Monthly flat-rate allowance 1.2.3. Accommodation 2. NSSO rules
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Legal content 1. Tax rules Both federal civil servants and employees from the private sector who make a business trip or travel on behalf of their employer within Belgium can receive a flat-rate expense allowance for doing so. The applicable flat-rate amounts are adjusted to the cost of living based on automatic index linking. There are various conditions attached to the granting of this allowance. If the employer respects this, the tax authorities will consider these allowances as a refund of a cost proper to the employer. The allowance then constitutes a non-taxable benefit for the employee and a tax-deductible business expense for the employer. If the conditions are not met or if the employer grants a higher flat-rate compensation, this compensation will be considered as taxable remuneration. The employer can avoid this if it can prove that the compensation: • •
is intended to cover the costs for which it is liable; and has actually been spent on those costs.
In addition, the employer must ensure that they do not pay the costs covered by the flat-rate amount based on actual supporting documents. 1.1. Amounts From 1 February 2022, the following maximum flat-rate amounts will apply:
Basic amount
Meal or daily allowance
Monthly flat-rate allowance
Accommodation costs
€10 per day
Max. 16 x €10 per month (in fulltime employment)
€75 per night
Max. 16 x €18.11 per month (in full-time employment)
€135.85 per night
Indexed amount from 1 €18.11 per day February 2022
1.2. Conditions 1.2.1. Fixed meal or daily allowance Amount From 1 October 2022, the meal or daily allowance will be €18.11 per day (non-indexed €10). SD Worx Social/Legal News March 2022
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This allowance covers all meal costs incurred by the employee during work-related travel. Conditions This is subject to the following conditions: • •
the travel on behalf of the employer must last at least six hours; the employer or a third party shall not reimburse the employee's meal costs in any way. The employee, for example, may not have access to a company restaurant or receive a free meal from a third party. If the employer grants a meal voucher for the same day, it must deduct the employer's contribution to the meal voucher from the daily allowance.
Anadditional condition applies to federal civil servants. Their journey must be more than 25 kilometres outside the conurbation of the administrative location. This condition does not apply to employees employed in the private sector. 1.2.2. Monthly flat-rate allowance The employer may also use a monthly flat-rate allowance for employees in a travelling job. In this context, a travelling job means a job that involves regular work-related travel. Amount For an employee in full-time work, the monthly allowance is equal to 'a' number of times the amount of the daily allowance (€18.11), up to an absolute maximum of 16 times. For part-time work, a pro-rata amount must be applied based on the employment percentage. The employer may grant the allowance irrespective of the exact number of business trips. The flat-rate amount is then linked to a job that involves regular business trips and not to a certain number of business trips. This monthly amount is a maximum. The tax authorities can base their decision on the business trips made in the previous year in order to assess whether the allocated monthly flat-rate amount correponds to the actual situation. Conditions The conditions of minimum duration and minimum distance do not apply here. However, the cumulative prohibition remains applicable. Under no circumstances may the employer or a third party reimburse the meal costs in any other way. 1.2.3. Accommodation An employee (or manager) sometimes has to stay somewhere when on a business trip. SD Worx Social/Legal News March 2022
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The employer may also reimburse this cost at a flat rate of €135.85 per night (non-indexed: €75). A cumulative prohibition also applies here. The employer or a third party may not reimburse or cover these accommodation costs in any other way. If, for example, an employee (or manager) has free accommodation on site, the employer/company may not grant the supplementary allowance for accommodation costs. 2. NSSO rules The National Social Security Office (NSSO) applies its own principles with regard to expense allowances for domestic work-related travel. In this context, the NSSO refers to reimbursement for travel expenses. Unfortunately, however, the NSSO and the tax authorities are not on the same page, both in terms of the amounts and the minimum duration of the travel. Below is an overview of the amounts applied by the NSSO and the conditions attached to them: Type of cost
Amount Conditions
Local travel allowance for non-sedentary employees: absence of amenities
Non-sedentary means that the employee is obliged to travel during the course of the working day (minimum of four €10/day consecutive hours) and is unable to use toilets and other facilities that would normally be available at the office, branch or site.
Local travel allowance for non-sedentary employees: meal
€7/day
Accommodation expenses in Belgium
€35/night
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- Non-sedentary means that the employee is obliged to travel during the course of the working day (minimum of four consecutive hours). - NSSO accepts the amount of the meal allowance only if the employee has no other option but to have a meal off the premises.
- If the employee is unable to return home at the end of the
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day because the work location is too far away. - Covers the cost of dinner, accommodation and breakfast. Source: Administrative instructions 2021/4 Both bodies agree on the cumulative prohibition. For the NSSO, the following also applies: •
•
The employer is unable to reimburse the cost on a flat-rate basis and on the basis of actual supporting documents. One of the two systems must therefore be chosen and applied consistently. The employer's contribution to the meal voucher must be deducted from the meal allowance of €7 if the employee also receives a meal voucher for the day away from home.
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2022 social security contributions: financing of Asbestos Fund widened SD Worx Knowledge Centre Source Royal Decree of 15 December 2021 determining the number of quarters for which the employer's contribution is payable for the financing of the Asbestos Fund for 2022, Belgian Official Journal of 22 December 2021, p. 121845.
The employer pays a contribution (0.01%) to the Asbestos Fund for the first, second and third quarters of 2022. Since the reform of the financing structure from 2017, the employer only paid this contribution during the first two quarters of the calendar year. This year it is the first time that a broader collection must take place. As a reminder: financing of the Asbestos Fund The Asbestos Fund (in full, the Indemnification Fund for Asbestos Victims) was established under the Fund for Occupational Diseases at the end of 2006. Under certain conditions, the Asbestos Fund grants compensation to asbestos victims. This concerns both employees and the self-employed. The fund also finances prevention projects and academic research relating to asbestos issues. The financing structure of the Asbestos Fund has been reformed since 2017. The Asbestos Fund's income mainly consists of: • • •
the yield of a specific employer's contribution (0.01%); an annual amount from the Federal State; financing via the social status of the self-employed.
The employer's contribution is payable for: • • •
employees subject in whole or in part to the Social Security Act of 27 June 1969; merchant seamen; and working students (with solidarity contributions).
The employer's contribution is 0.01% and is calculated on the salaries subject to social security contributions. The NSSO collects the contribution. For the years 2017 to 2019, the NSSO only collected the contribution for two quarters: the first and second quarters of each year.
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Reforms From 2020, the number of quarters for which the contribution is due can be defined annually. The Management Committee for Occupational Diseases is drawing up a proposal for this based on the budget forecasts. This is done by royal decree in December of the previous year at the latest. In the absence of a decree, the contribution is payable for the first and second quarters. For the years 2020 and 2021, this decree did not take place and the contribution was only due for the first and second quarters. For 2022, a decree imposes the collection for the first three quarters.
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Flemish Region: Flemish job bonus from 2022 SD Worx Knowledge Centre Source Draft decree regulating the granting of a job bonus, approved by the Flemish Government on 23 December 2021.
The Flemish Government provides for the allocation of a Flemish job bonus from the end of 2022. It is a bonus for persons: • • •
with a low professional income; with their principal residence in the Flemish Region; and younger than the retirement age.
In the meantime, the definitive calculation rules have been determined, as well as the way in which the discount will be allocated. Legislation is still under preparation. At the end of December 2021, the Flemish Government issued a second approval in principle for the draft decree. We expect another implementing decree that lays down further terms and conditions. Situation The idea of a job bonus is included in the Flemish governmental agreement of 2019. The Flemish Government wants to give people with a low professional income an additional financial incentive to work or to continue working. The job bonus must increase the difference between work and non-work and therefore make work more rewarding. The original plan was to grant the job bonus as early as 2021. However, this development is taking a long time. After exploring the various possibilities, a job bonus in the form of a bonus awarded based on the annual salary was chosen. Moreover, the aim is to grant the bonus automatically as far as possible based on information from authentic sources. The development of such a system is very difficult. For whom? The decree specifies the target group of the job bonus in detail. This will include: •
employees subject to social security (at least the sickness and disability benefits and medical care, unemployment and pension);
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• • • •
statutory officials (permanent staff of regional, federal, local and provincial authorities, including staff of Community education and all other public educational institutions); beneficiaries of a PhD grant at private educational or research institutions; permanent staff of subsidised educational institutions; cross-border workers.
Working students (with a solidarity rate) are not eligible. Persons who only receive an allowance or replacement income are not eligible for the job bonus for that period. Conditions In order to effectively receive a job bonus, the beneficiaries must meet a number of conditions: • • •
their official residence must be in the Flemish Region on 1 January of the year following the reference year (i.e. on 1 January 2022 for the job bonus in 2022); they may not have reached retirement age on the first day of the quarter of service in the reference year (1 January 2021 for the 2022 job bonus); the average monthly gross salary or average monthly income in the reference year must be limited to certain salary limits.
The reference year is the calendar year on which the job bonus is calculated. 2021 is the reference year for the first Flemish job bonus in 2022. Note: The person's place of employment is not relevant. The measure is linked to the place of residence. Those who work in another region or abroad can also benefit from a job bonus. The explanatory memorandum to the decree states that the residence criterion may apply (in accordance with Union law) as this is not about social security, but about a fiscal measure in favour of active staff. In addition, there is also a supplementary measure for the selfemployed. The job bonus is intended for those subject to personal income tax in the Flemish Region. Bonus amount and salary limits The annual bonus for full-time employment for the full reference year amounts to: •
a maximum of €600 with an average monthly gross salary of a maximum of €1,800;
•
a degressive amount from €600 to a minimum of €20 (based on a calculation formula) for an average monthly gross salary between €1,800 and €2,500;
•
€0 or no entitlement to a job bonus for an average monthly gross salary of €2,500 or more.
If the bonus amount is too small, it will not be paid out. SD Worx Social/Legal News March 2022
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This occurs for a bonus lower than: • •
€20 per year for full-time work; €10 per year for part-time work.
The Flemish Government may adjust the bonus amounts and wage and income limits in line with changes in wages and purchasing power. Calculation formula The amount takes into account the actual number of hours worked in the reference year. The amount of the job bonus in 2022 is based on the work carried out in 2021. Bonuses are calculated on a quarterly basis. The bonus is in proportion to the period worked and the work schedule. An implementing decree shall lay down the precise method of calculation. The calculation method will be established for beneficiaries who: • •
have not worked the full reference year or full-time; reach retirement age in a quarter on which the bonus calculation is made.
The decree will also determine what is understood by 'average monthly gross salary'. Some income or parts of the salary may not, or may only be partially eligible under certain conditions. In addition, the aim is to make a distinction based on the source of income. The calculation method for the job bonus will be partly modelled on the federal work bonus. We want to use existing data files (NSSO source file for calculated federal work bonuses) and add our own information. In divergence from the work bonus, DMFA pay code 2 (including the year-end bonus) will be completely disregarded for the calculation of the average gross salary. This benefits citizens. Additional income (excluding supplements) is not taken into account, such as income from the sharing economy and untaxed additional income in associations, income from political mandates, joint municipal corporation or boards of directors, income from a secondary occupation as a self-employed person and so on. Non-occupational periods, such as temporary unemployment, long-term illness or time credit, or substitute income or allowances are not taken into account. The income is compiled for the periods in which the beneficiary receives a salary for work performance. Automatic allocation The Flemish Government is committed to the automatic allocation of the bonus based on the wage and working hours data as specified in the quarterly declarations to the NSSO. This is intended to reach as much of the target group as possible. SD Worx Social/Legal News March 2022
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The Flemish Department of Work and Social Economy (DWSE) and the Flemish Tax Administration (VLABEL) will work together as follows for the allocation, calculation and payment of the bonus: •
VLABEL ensures the retrieval and linking of the beneficiaries' account numbers. The account numbers are registered via the Agentschap Digitale Vlaanderen (My Citizen Profile). VLABEL will set up a (one-off) registration procedure, which is part of a wideranging information campaign on the job bonus.
•
DWSE calculates and checks the allocation conditions.
•
VLABEL is responsible for communication with the beneficiaries and payment of the bonus to the Belgian account numbers that are available.
•
VLABEL also ensures follow-up of responses, the handling of objections and the possible recovery of wrongly paid bonuses.
Beneficiaries for whom automatic allocation is not possible can apply for the bonus via an application form or online application module (within three years of the reference year). The application includes: • • • •
identity and address details; national registration number or BIS number; Belgian account number; salary and employment details.
An implementing decree defines the procedure further. Time of payment The Flemish Government determines the time and frequency of payment of the bonus by means of an implementing decree. In the first instance, an annual payment of a (larger) bonus amount is chosen. In principle, the first job bonus will be paid in November 2022. The time of payment in November follows from the availability of 'stable' DMFA data after 10 months. Stable data will not be available for the 2021 revenue until October 2022. Payment can therefore be made in November 2022 at the earliest, provided that the beneficiary's account number is known. After all, the intention is to avoid recoveries as much as possible. In the long term, it can be examined whether a payment within a shorter period is possible (e.g. on a quarterly basis). Neutralisation of job bonus as income
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The job bonus is not charged for income-related measures in the Flemish Region, such as the growth package, childcare, social housing, study grants and prices at De Lijn, water and energy, among others. The Flemish Government also requests explicit federal exemptions for the Flemish job bonus with regard to: • • • •
income tax (necessary in order to avoid part of the bonus being tax-deductible); subsidies to persons with a disability; allocation of living wages and social benefits to people entitled to living wages; means of subsistence for the application of tax legislation.
Next step • • •
The draft decree is to be sent to the Council of State for an opinion. The federal government has been asked to exempt the bonus from tax. Preparations have begun for the data exchange with the managers of the authentic sources. Data flows must be organised, including the NSSO, CBE registers, FPS Finance, VLABEL and other data managers.
Entry into force The Flemish Government determines the date of entry into force. The option to determine separate effective dates for the various parts of the decree is also available in view of the desired adjustments in the federal legislation (exemptions that are necessary). Payment of the bonus will only take place once the exemptions have been completed. Note: This discussion is based on draft bills. Amendments may therefore still be made. This discussion is also subject to publication in the Belgian Official Journal. Consequences for the employer The Flemish Government does not request any additional efforts from employers for the job bonus. The job bonus will be awarded directly to the beneficiaries in the Flemish Region in the form of a bonus. However, the calculation will be based on the wage and working time data indicated in the mandatory quarterly declarations to the NSSO. How will this affect the public sector? Contractual and statutory officials are also eligible for the job bonus if they meet the conditions. Context The job bonus is aimed at all salaried residents of the Flemish Region of working age. SD Worx Social/Legal News March 2022
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We can assume that young people are more strongly represented in the target group of lowincome people due to their higher proportion of temporary employment and the strong link between age and seniority. 11.2% of the FTEs in work among young people (<25 years old) are remunerated with a reference salary of ≤€1,800 and would receive a full job bonus. For persons aged 25 or older in the Flemish Region, this share is estimated at 2.6% in 2021. An additional 53.9% of the FTEs in work among young people are remunerated with a reference salary of more than €1,800, but less than or equal to €2,500. For example, 65.1% of young people would be eligible for a job bonus. Of the 25+ employees, 23.5% of the salaried employees (in FTEs) work for a reference salary between €1,800 and €2,500. In the general wage-earning population in Flanders, 30.1% would be eligible. Young people are therefore more strongly represented in the target group of people with a low income. (Source: NSSO simulation files for Q1 2021 – Q4 2021 for Flanders)
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Don't forget the employment plan for employees aged ≥45 SD Worx Knowledge Centre Source CLA No. 104 of 27 June 2012 on the implementation of an employment plan for older employees in the company
All companies with more than 20 employees must draw up an employment plan for employees aged ≥45. The plan sets out measures put in place by the company to retain or increase the employment of employees aged 45 and above. In addition, the company must also draw up an evaluation of the previous plan. Principle The company may draw up this plan annually or over a period of several years. If the company had already drawn up an annual employment plan, it must draw up a new plan. Naturally, companies that have a multi-year plan do not need to draw up a new one. However, they must report on the progress of the employment plan (see below). Employment rate plan Employers must submit the plan to: • • • •
the Works Council; the trade union delegation if there is no works council; the Committee for Prevention and Protection at Work; employees if there is no CPPW.
If there is a works council in the company, the employer submits the plan as part of the annual employment rate information. This takes place: •
•
within three months of the end of the year of service (financial year). The accounting year of a business often corresponds to the calendar year. In that case, the information will therefore have to be given to the Works Council by the end of March at the latest; or before the general meeting at which the shareholders approve the annual accounts. This meeting must take place within six months of the end of the financial year. If the financial year coincides with the calendar year, this must be done by June at the latest. In this case, the aforementioned period of three months may be exceeded.
In addition to an obligation to provide information, companies with a trade union delegation and/or a consultative body also have an obligation to consult the employee representatives about the content of the plan. Evaluation The new draft employment plan should also include an evaluation of the previous employment plan. SD Worx Social/Legal News March 2022
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At the end of the employment plan, the employer must inform the employee representatives or the employees themselves of the results of the measures taken in the past year. In addition, in the event that the company has drawn up an employment plan for several years, the progress of the plan must be evaluated annually and information provided. This evaluation takes place: • •
within three months of the end of the year of service (financial year); or before the general meeting at which the shareholders approve the annual accounts.
Consequences for the employer Companies that have concluded an annual employment plan for the employees aged ≥45 must draw up a new plan. The new draft employment plan should also include an evaluation of the previous employment plan. Naturally, companies that have a multi-year plan do not need to draw up a new one. However, they must report on the progress of the employment plan.
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Don't forget the 2021 Annual Report from the Internal Department for Prevention and Protection at Work SD Worx Knowledge Centre
Health and safety at work The welfare legislation obliges the employer to organise a preventive welfare policy at work. One of the obligations in this regard is the establishment of an internal department for prevention and protection at work (IDPPW). Every employer is obliged to do this. The IDPPW consists of at least one prevention adviser (member of staff), usually supplemented by experts and administrative staff. A medical supervision department may also be included. In any case, the IDPPW must be capable of multidisciplinary operation. In companies with fewer than 20 employees, the employer may take on the role of prevention adviser. If the company does not have sufficient expertise to perform all the duties of the IDPPW, the employer must outsource these tasks to an external department for prevention and protection at work. Annual report The prevention adviser must draw up an annual report on the operation of the IDPPW. The employer shall keep this report to be made available for inspection. The annual report provides an overview of the preventive welfare policy that was carried out within the company during 2021. It also statistically reflects the events in terms of well-being. The content of the annual report is determined by law. FPS Employment, Labour and Social Consultation makes the necessary forms available to employers, together with an explanatory note. Consequences for the employer Every employer must keep an annual report available for inspection. Failure to comply with this obligation is punishable by law. How will this affect the public sector? The preparation and availability of the IDPPW annual report is also an obligation in the public sector.
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Reform of Plus Plans from 1 January 2022: regulations put in place SD Worx Knowledge Centre Source The Royal Decree of 27 January 2022 amending the Royal Decree of 16 May 2003 implementing Chapter 7 of Title IV of the framework law of 24 December 2002 (I), on harmonising and simplifying the regulations concerning reductions in social security contributions, p. 9795.
From 1 January 2022, new rules apply to the target group reduction for first recruitments. The changes are the result of an evaluation of the system of this target group reduction. However, there was still no implementing decree. This was announced on 10 February. The legislation has now been fully amended. New principles Let's recap the new principles we need to follow from 1 January 2022: •
The target group reduction for the first employee is no longer an unlimited exemption from social security contributions in terms of the amount It is now also a (limited) flat-rate reduction of maximum €4,000 per quarter for full quarterly performance. However, the reduction is unlimited in time. This applies to each target group reduction for the first employee from 1 January 2022, even if the employer has opened the right to the reduction before 1 January 2022. However, there is no retroactive application.
•
All occasional workers and flexi-job workers are completely excluded from the system (for the count, the opening of the right, the application of the reduction)
•
The existing calculation method for determining whether an employee who is newly employed is a replacement for a person who was previously employed in the technical business entity (TBU) is now laid down in the decree
•
A new tolerance rule applies to that calculation method A maximum of five effective days (with the highest employment) are not taken into account when assessing the maximum simultaneous employment in the TBU in the reference period. For example, we disregard accidental or exceptional employment when checking replacements in the TBU.
•
The same employer (legal entity) may only apply the reductions for the first to sixth employee once This new rule is aimed at the situation of the continuation of a target group reduction opened elsewhere (in the case of restructuring or legal change of the employer). From 2022, in the event that several first or nth reductions were applied for one employer (legal entity), the employer concerned will have to choose.
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A divergence is provided from this principle in the event of replacement in the same quarter. •
The same reduction is possible for employees who are replacements within the same quarter, provided that they are not employed simultaneously at any time Until the end of 2021, the departure of a first and only employee in the course of a quarter, followed by the commencement of employment of a second employee in the course of the same quarter, led to the start of the 'reduction of second recruitment'. This is no longer the case. You can now continue the 'reduction of first recruitment'.
•
If an employer is part of a simultaneous TBU, an analogous principle applies: the reductions for first to sixth employees may only be applied once within that TBU This provision does not apply to reductions already started before 1 January 2022 for simultaneous TBUs (which existed at that time).
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For the opening of the right to a reduction and the application of a reduction, there must be sufficient 'simultaneous employment' The decision stipulates that the reduction can only be applied for an n-th employee if there are n employees simultaneously in service during the course of the quarter.
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The 'additional employment in a TBU' must continue at least one month after the date of commencement of employment
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For the grade of the reductions, we must look at the number of employees previously employed by the employer or the TBU (new conditions under the definitions of 'new employer' in the law). A difference is made in the count depending on whether new employees join a company that is part of a simultaneous or historical TBU. In the case of a simultaneous TBU, no right to a target group reduction can arise for first recruitments as soon as there are at least six employees in total employed within the TBU. Before 2022, additional employment within the TBU was sufficient to open a right. If an enterprise is the result of a restructuring operation, the newly hired employee who constitutes additional employment can only take the grade into account for the application of the reduction, taking into account the employees who have been taken over from the pre-existing entity or entities. The additional employees are now considered to be 'last employed'. Until now, they were the 'first' to be employed.
Entry into force The new rules will enter into force on 1 January 2022. No transitional arrangement is provided.
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The right to the target group reduction for first recruitments that was opened before 1 January 2022 has been retained due to recruitment that would no longer be eligible under the new rules. Consequences for the employer Current target group reductions Employers who already make use of a 'first hire' target group reduction may continue to apply this benefit for an unspecified duration starting from the first quarter of 2022. However, the amount of the reduction may decrease (fixed amount capped at €4,000 per quarter in the case of full quarterly performance). The impact is mainly on high pay levels. The target group reductions for the second to sixth recruits remain unchanged. As of 1 January 2022, the opening of a new entitlement to a target group reduction for an nth employee and its application will be linked to stricter conditions. The new principles apply to new recruits. New target group reductions New employers who meet all the allocation conditions applicable from 1 January 2022 can claim a target group reduction for a maximum of six employees. The employer's target group reductions can be applied immediately to an employee of your choice in the payroll calculation, provided that all conditions are met. From 1 January 2022, the benefit for a first hire is capped at €4,000 per quarter in the case of full quarterly performance. The target group reduction applies indefinitely. The target group reductions for the second to sixth recruits remain unchanged. However, claiming the right to a target group reduction for the second to sixth recruits and the application of this are subject to stricter conditions from 1 January 2022. Clients of SD Worx The adjusted calculation of the target group reduction for the first employee will be made automatically in the payroll calculations. Employers do not need to take any action in this respect. SD Worx will update its programming as soon as possible.
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Index A Annual holidays: Annual report: Mar 44
B Benefits: Benefits in kind: Mar 25 Bicycle: Business trips: Mar 29
C Carer's leave: CLA No. 90: Mar 6 CO2 emissions: Jan 41 Corona premium: Jan 2 Commuting: Feb 28, Mar 24 Company cars: Company closure fund: Feb 24
D Discrimination: 21
E Eco-vouchers: Jan 27 Educational leave: Feb 30 Employment plan: Mar 42
F Final employment: Flemish incentive bonus:
I Innovation premium: IPA: Jan 11
G GDPR:
J Job bonus: Mar 36
K Key index: Jan 3 and 4, Mar 4
L Labour Deal: Mar 10 Long-term illness: Feb 5
M Meal vouchers: Mobility: Mobility budget: Mobility survey: Feb 16 SD Worx Social/Legal News March 2022
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N Night work: Notice periods: NSSO: Mar 34
O Occupational disease: Jan 50 Office allowance: Jan 46 Overtime: Mar 5
P Personal income tax: Phoenix.Brussels: Feb 33 Programme Act: Jan 14
R Reimbursement of expenses: Reimbursed expenses: Reintegration of long-term sick employees: Jan 21 and 25 Retirement pension:
S Sickness and Disability Insurance benefit: Social inspectorate: Sport and cultural vouchers: Jan 55 Storm: Mar 23 Students:
T Target group reductions: Mar 45 Teleworking: Jan 5, Feb 2 and 22 Test policy: Jan 8
U Unemployment with an additional company allowance (RCC/SWT) Unemployment: Jan 30
V Vaccination leave: Jan 39
W Withholding tax: Feb 7, 10 and 20, Mar 15 Working hours: Wage garnishment: Jan 44
Z
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