CBA No. 162 introduces the right for private sector workers to request “flexible working arrangements”, in order to take care of their children or to provide assistance to a family member. The CBA also provides specific guarantees for workers who make use of this right. These new measures came into force on 1 October 2022.
Conditions to exercise this right
To be able to apply for a flexible working arrangement, the worker must be bound by an employment agreement with his or her employer for six months prior to the application.
The worker can request a flexible working arrangement in two situations:
- First possibility: the worker wishes to take care of a child until his/her 12th birthday. The age requirement is, under certain circumstances, raised to 21 years if the child is physically or mentally disabled;
- Second possibility: the worker wishes to provide personal care or assistance to a member of the household or family who requires such care or assistance for a “serious medical reason“.
Modalities
Flexible working arrangements implies an adjustment of the worker’s existing working conditions. This adjustment may, for example, take the form of :
- a reduction in working time;
- an adjustment of working hours;
- remote working ;
- a 4-day working week (see news on the « jobsdeal »);
- flexible working hours;
- etc.
If the requested adjustment is not compatible with the existing regulations of the company (e.g. the work rules), than these regulations must be adapted before the requested adjustment can be authorised.
The flexible working arrangement can be requested for a maximum period of 12 months (without prejudice to possible derogations or extensions). However, the worker who fulfils the conditions of this right can make unlimited use of it and always make new requests. For example, parents could request voluntary part-time work during each school holiday period.
Procedure to be followed
The following procedure applies:
- REQUEST: three months in advance, the worker sends a written request to the employer. This must contain certain specific details: type of the requested flexible working arrangement, purpose of the care to be provided, etc.
- RESPONSE: within one month of the request, the employer provides a written and motivated response to the worker. The employer may (i) accept the request, (ii) refuse it, (iii) postpone it or (iv) propose the worker another type of flexible working arrangement.
- At the latest when the flexible working arrangement starts, the employee shall provide proof of the reason for the flexible working arrangement.
Guarantees for the exercise of this right
A worker who exercises his or her right enjoys special protection against unfavourable treatment and dismissal. Non-renewal of a fixed-term employment agreement can also qualify as an unfavourable treatment.
If the employer cannot prove that the unfavourable treatment is not linked with the fact that the worker has exercised this right, he is entitled to a compensation ranging from 2 to 3 months’ pay in the case of unfavourable treatment, and from 4 to 6 months’ pay in the case of dismissal.
Sources :
- Act of 7 October 2022 partially transposing Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and aid workers, repealing Council Directive 2010/18/EU, and regulating certain other aspects of leave, adopted on 29 September 2022 and published in the Belgian Official Gazette on 31 October 2022 ;
- Collective labour agreement No. 162 of 27 September 2022 establishing a right to request a flexible working arrangement
This article was first published on 29 November 2022 by our Belgian member firm Sotra. Sotra is a specialized Belgian boutique law firm specializing in Labor Law and HR-Tax Law. With offices in Brussels and Namur, the firm advises national and international corporations and SMEs, in addition to startups, public bodies and executives, on a wide range of employment and social security law matters. Wait no longer to discover how Sotra can help you, visit their website and contact our representatives Olivier Rijckaert.
