Authors: Charline Leflot, Advisor BDO Legal, and Lola Degrez, Senior BDO Legal
To avoid the spread of coronavirus, a large number of employers around the world have been forced to move their employees to teleworking. This mandatory remote working may impact the situation of certain internationally-mobile workers who now find themselves teleworking on Belgian territory. Let’s address certain employment aspects that may arise due to this situation.
Applicable labour legislation
“The applicable labour legislation depends on the temporary or permanent teleworking situation of the employee.”
For any internationally mobile worker, it is necessary to consider the applicable labour legislation as it determines the mandatory conditions of the employment relationship, such as the minimum wage, maximum working hours and rest periods, as well as the provisions relating to teleworking.
According to the general principle set out in the Rome I Regulation of 17 June 2008 on the law applicable to contractual obligations (hereinafter “Rome I Regulation”), the employment contract is governed by the law chosen by the parties. The worker may not be deprived of the protection of the more favourable mandatory provisions of the legislation of the country where the work is usually performed.
The “usual place of work” is where the worker fulfils most of his or her obligations towards his or her employer. According to the Rome I Regulation that is not deemed to change when the worker performs his or her work temporarily in another country. Therefore, in the case of a teleworking worker who is not a Belgian resident, it is necessary to determine whether the situation is only temporary and whether it may continue over time. In the former case, the labour legislation initially chosen continues to apply, as before, unless the employer and the worker agree otherwise. However, if the situation is more permanent and is intended to continue after the health crisis, it may have an impact on the worker’s usual place of employment. If the extent of the teleworking is such that the country of residence becomes the worker’s usual place of work, the mandatory provisions of the labour legislation that are more favourable to the worker should apply.
In short, each situation must, where appropriate, be examined on a case-by-case basis in order to determine whether the mandatory foreign provisions are more favourable to the worker than those provided for by Belgian labour legislation or the legislation initially chosen by the parties.
Belgian legislation on teleworking
There are several forms of teleworking in Belgian law:
Occasional teleworking, for exceptional and non-recurring situations of teleworking in case of force majeure or for personal reasons;
Teleworking that is highly recommended or mandatory due to the coronavirus crisis.
Structural or regular teleworking is regulated by Collective Labour Agreement no. 85 (hereinafter “CLA no. 85”). This concerns work carried out outside the employer’s premises on a regular and non-occasional basis, irrespective of the coronavirus health crisis. It is therefore more generally applicable in all situations of regular teleworking (e.g. 2 days of teleworking per week) when Belgian social security legislation is applicable.
CLA no. 85 provides for a general framework for structural teleworking, the main rules of which are as follows:
A written agreement on teleworking (the information that it is required to contain is specified in CLA no. 85) between the employer and each individual worker must be in place at the latest when the teleworker begins teleworking;
The teleworker must have the same rights in terms of working conditions as comparable workers working on the employer’s premises;
The teleworker organises his or her work within the working time applicable to him or her within the company;
The equipment and technical assistance required must be provided to the teleworker by the employer. The employer must also cover the communication and connection costs related to teleworking;
The employer is required to adopt measures to prevent the teleworker from being isolated from other workers in the company.
Teleworking that is recommended or mandatory due to the coronavirus crisis
In January 2021, the Belgian social partners concluded Collective Labour Agreement No. 149 on recommended or mandatory teleworking due to the coronavirus crisis (hereinafter “CLA No. 149”). This CLA was concluded for a fixed term, with an end date of 31 December 2021, unless it becomes moot sooner. It applies to companies without a teleworking plan whose workers have been moved to recommended or mandatory teleworking due to the coronavirus crisis.
Where Belgian labour legislation applies to the employment relationship with a teleworker on Belgian territory, this new framework is therefore intended to apply. The most important elements are as follows:
Like for structural teleworking (CLA no. 85), teleworkers enjoy the same working conditions as those applied when they are employed on the employer’s premises and an equivalent workload. If specific working conditions apply, the teleworkers must be notified of them;
The equipment and technical assistance required must be provided by the employer. Otherwise, the employer must cover the costs of installing computer software and the costs of use, operation, maintenance and depreciation;
An agreement must also be reached concerning any additional communication and connection costs related to the teleworking. However, when discussing compensation for expenses, other costs and expenses or compensation paid by the employer may be taken into account, even if they are not linked to the consequences associated with the coronavirus crisis (e.g. a home office allowance that might already be paid);
The CLA also requires consultation and, as far as possible, an agreement with employees on important issues such as working hours, monitoring of results to be achieved, evaluation criteria and the periods during which the teleworker must be reachable;
Finally, the employer is obliged to inform the teleworker about health and safety measures (installation of the workstation, correct use of screens/displays, etc.), and maintain the teleworker’s links with his or her colleagues and with the company, in order to prevent isolation.
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