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ESTATE LAW REFORM: WHAT TO DO BEFORE 1 SEPTEMBER 2018?

Posted on 5 January 2018
Department : 
Private Tax & Litigation

The Act of 31 July 2017, published in the Belgian Official Gazette, introduced profound changes in our civil code. The parliament intends to simplify and modernise the current rules while allowing greater freedom to dispose of one’s assets. Thus, most notable feature of this reform, the available quota will in the future be equivalent to 50% of the estate, regardless of the number of children. The parliament wanted to take into account the societal development of (i) people living longer and (ii) often having many lives. This law will apply to all successions starting from 1 September 2018.  All acts of donation made even earlier will be, in principle, subject to the new rules except in certain cases (automatically or by means of a notarised confirmation taking place before 1 September 2018).

I. THE PRIMARY CHANGES

1. The reserve and the reduction of donations

Today, the rightful heirs are the descendants, the spouse and, in the absence of descendants, ascendants. The available quota is equal to 50% (if a child), 1/3 (if two children) and ¼ (if three or more children).

From 1 September 2018, the reserve for the descendants will be understood as a global reserve equal to half of the succession. The other half will be allocated to the freely disposable portion.

The reserve of the surviving spouse has not been modified (except as regards the actual reserve which has been extended to a leasehold on the dwelling house). However, when assessing this reserve, it was stipulated that the surviving spouse will no longer be able to assert their right to the reduction on gifts made before marriage to the donor.

The reserve of ascendants has been removed and replaced by a maintenance claim in the event of need (limited to one quarter of the succession).

The deceased will be able to freely dispose of half of his/her estate.  From 1 September 2018, the reduction of a donation will accomplished with less effort.  The recipient of the donation will therefore keep the property and will have to provide, primarily, monetary compensation.  The recipient may, however, agree to a reduction in kind. Important new feature of the law: the valuation of goods.  As part of the reduction, the indexed value of the donated assets on the day of the donation will be taken into account. However, if the donor has not been able to freely dispose of the donated property due to, for example, an unavailability or usufruct encumbrance, the valuation of the asset will be made on the day when the encumbrance ceases or the usufruct ceases.

2. The donation report

The donation report aims to maintain equality between the different rightful heirs. In the absence of precision, the permissible variations with regard to the spouse and the descendants are now presumed reportable.

Three important changes are worth noting:

  • Only donations made to descendants will still be presumed to be reportable.
    The report will no longer exist for or against the surviving spouse. However, for donations made before 1 September 2018, the parliament has nevertheless allowed the maintenance of the rules relating to the mode of the report as provided at the time of the donation.
  • The donation report will be made easier and take into account the indexed value of such donations on the day of donation (harmonisation with the rules applicable to reduction; distinction based on whether the recipient of the donation was able to freely dispose of the donated goods or not.
  • If it is now possible to transform a reportable donation into a non-reportable donation, the opposite, however, is not possible. The new law will enable, subject to the agreement of the recipient of the donation, change in both directions.

3. Future succession pacts

The principle of the prohibition of pacts on future succession remains applicable but has been relaxed. The law has, in fact, provided for global succession pacts (imperative that it be concluded with all of the heirs in a descending line) and specific (being able to take place among some of them). In both cases, these inheritance pacts will have to be done in notarial form and comply with a significant formalism.

These pacts enable the setting of the donations made to avoid any dispute between the heirs on the opening date of the succession of the donor’s estate. Such donor will have to detail and prioritise them in order to demonstrate that, according to the donor, a balance, as subjective as it is, has been maintained among the different descendants. If all of the parties sign this pact, they definitively waive their right to ask for the reduction of a donation or contest its value.

In addition to the heavy formalism attached to the establishment of these pacts, certain tax uncertainties may also limit the excitement: the act prior to being notarised, would the registration rights be due on the donations already made and specifically inventoried in the pact? The question remains open.

4. The conversion of the usufruct of the surviving spouse

The conversion of the usufruct of the surviving spouse remains possible, except as concerns the family dwelling (the agreement of the surviving spouse must and will always be necessary).  However, if the judge currently has the power of discretion, such discretion will not remain the same tomorrow.  The new law no longer requires the involvement of the magistrate in the event of children from another union.  In addition, this conversion cannot be discussed and only legal mortality tables will be applicable.

II. IMPACTS ON ESTATE PLANNING IMPLEMENTATIONS

We have examined some frequently encountered situations in practice in order to analyse them in the light of the new law.

1. Between spouses

The donation between spouses, married in a separation of property regime, is often privileged when the children are still young.  It is very flexible (revocability of donations between spouses) and if it is reportable in kind, retains the 'natural' effects status in the event of the death of the donor: the children are instructed to report the donated property in bare ownership and the surviving spouse retains the usufruct.  From a tax point of view, however, inheritance taxes are avoided.

Given the removal of the report by the surviving spouse of the donations received from the deceased, this procedure will have to be reviewed. In fact, the assets given to the spouse will no longer be reported to the estate but will be allocated primarily to the freely disposable share. On the death of the second of the spouses, if the donated assets are still in the estate of such spouse, the children of the donor will pay inheritance tax on these assets (in the absence prior estate planning by said second spouse). It would therefore be interesting, in the frequent scenario where the donor does not wish to benefit, as such, his/her spouse in relation to their children, to plan a donation to the spouse, reportable in kind with respect to the succession and to do it before 1 September 2018.

The application of the transitional rules provided for by law allows that all of the donations already made (as of 1 September 2018) on the basis of this scheme will remain applicable, on the day of the donor's death, as provided for and originally desired by such donor.

2. To the descendants

In the context of donations, when a donor possessed assets of different values and nature (cash, securities and real estate), it was common to resort to the "double act" technique. This method consisted in giving the same goods on the same day to all the descendants in joint ownership in order to avoid, on the opening date of the succession of the donor’s estate, that the application of the reporting rules not give rise to undesired inequalities among the children. It was then up to the children to circumvent the joint ownership and divide the donated assets between them, according to their affinities. This method could lose its raison d’être given the harmonisation of valuation rules in this area. It will be enough for the value of the donated goods, on the day of the donation (in full ownership) to be the same for each of the donation recipients.

However, it will be necessary to think about (i) the spouse to whom these donations will no longer be reportable and (ii) the equality of the valuation rules which will be wiped out in the event of a gift with a usufruct reserve. 

With regard to the spouse, if the donation occurs after the marriage, and it is done with a usufruct reserve, the parliament in this case has provided for a "continued" usufruct for the surviving spouse. Since this usufruct is a new right of inheritance, we assume that it will not be taxed under inheritance tax law. This provision will ultimately allow, as before, the surviving spouse to benefit from a non-taxable estate usufruct on the property donated by the deceased spouse to the children.

On the other hand, as far as the report is concerned, the value of the property must be based on the day of death (if the deceased had not given up his/her usufruct beforehand) and, consequently, inequities related solely to the report could reappear.  Thus, the double act technique will not necessarily be over.

3. To third parties

While it is true that the increase in the disposable portion will in the vast majority of cases make it possible to more broadly benefit third parties, it should be noted that, in certain particular cases, the situation will be different particularly when the deceased wanted to reduce his/her spouse to his/her reserve. In this case, the parliament provided that the reserve of that descendants (namely, children) should be free of usufruct. As a result, the surviving spouse's reserve will be charged for its usufruct on the freely disposable portion. Thus, the liberality in full ownership that the deceased would have made to third parties (and who necessarily count on the freely disposable portion) will be systematically reduced to bare ownership.  On the other hand, if the rights of the surviving spouse are not reduced by will, the usufruct/bare ownership separation will take place as before, between the children and the spouse. 

One of the major axes of the reform was precisely the following: a principle of increased autonomy demonstrated by the quantitative expansion of the freely disposable portion in order to allow larger legacies to third parties, such as stepchildren (taking into account favourable rates in different regions) or for philanthropic work.

Everyone is concerned, even those who do not think about it: It will indeed be necessary to be very attentive and verify the formulation of the current testamentary dispositions: a person who has three children and bequeaths to a friend/foundation the largest freely disposable portion, currently bequeaths a quarter of his/her estate, whereas from 1 September 2018, the donor would leave half of his/her estate.

III. CONCLUSION

This reform brings us back to our past practices to ensure that the initial volition of the donor or testator will be respected in light of the new legal provisions.

Balances within the family have in fact been modified and it is important to use the next ten months to check whether acts of donation or testamentary dispositions contain statements that need to be corrected or whether it is necessary to confirm their retention in an express declaration before a notary.

For the future, the new rules will provide more freedom to the donor/testator and more legal certainty to the donation recipient/legatee.

Finally, it will be absolutely necessary to follow the evolution of the current reform on matrimonial regimes because the links between the two subjects are inseparable and will also have impacts on the patrimonial organisation of families.

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FRAMEWORK LEGISLATION OF 25 DECEMBER 2017: OVERVIEW OF THE CHANGES IN EMPLOYMENT LAW

Posted on 5 January 2018
Department : 
Labour & Social Security

On 25 December 2017, Framework Legislation (hereinafter “the Law”) was passed by the Chamber and published in the Belgian Official Gazette on 29 December. Apart from changes in taxation, this Law also contains various measures relating to employment law and to social security law.

Among other things, the five most significant changes are as follows:

  • an increase in the special social security contribution for supplementary pensions;
  • the extension of flexi-jobs to the sectors of trade and to pensioners;
  • the introduction of a new profit bonus for employees receiving distributed profits;
  • the introduction of an activation contribution in case workers are relieved of services while remuneration is maintained;
  • the introduction of an empowerment contribution as regards part-time employment of workers.

I. The increase in special social security contributions for supplemental pensions

At the start of 2012, a special social security contribution called “Wijninckx” was introduced, amounting to 1.5% of payments made by the employer in the context of a worker’s supplemental pension plan. It was introduced to fight against “high supplemental pensions” which could sometimes conceal hidden remuneration. The so-called Wijninckx contribution, coming on top of the ordinary employer’s contribution of 8.85%, is applied when, for a salaried worker, the sum of contributions and/or employer’s premiums to set up a supplementary pension exceed the ceiling of 30,000 euros per year (indexed amount for 2017: 31,836.00 EUR). The employer must verify for each year of contribution whether the threshold has been exceeded for a given worker and, if this is the case, pay this special contribution on the part which exceeds this amount. Both the amounts paid by the employer and those paid by the worker are taken into account to determine whether the threshold of 30,000 euros has been exceeded, but the special contribution is calculated only on the part of these contributions which exceed the threshold and which is paid by the employer. A similar scheme is applied to the self-employed.

In the Law, the percentage of the special contribution is doubled: it increased from 1.5% to 3% on 1 January 2018.

In addition, by virtue of the law of 30 September 2017 dealing with various provisions of social policy, the set amount of 30,000 euros will be replaced beginning on 1 January 2019 by a “pension objective” per worker. Thus, the contribution will be payable if, at 1 January of the year which precedes the contribution year the sum of the legally mandated pension and the supplemental pension of a worker exceeds the maximum amount of “the pension objective”. This pension objective equals the maximum amount of the pensions in the public sector multiplied by the career fraction. Starting on this date, the special contribution will be payable on the total amount of the employers’ contributions – and more solely on the part of the contributions which exceed 30,000 euros – if the sum of the supplemental pension and of the legally mandated pension exceed the pension objective.

II. The extension of flexi-jobs to the sector of trade and to pensioned workers

At the end of November 2015, the lawmaker introduced the concept of “flexi-jobs”, which was limited initially to the sector of Horeca. This system enables those who already have a principal activity (corresponding to a minimum of 4/5 time) to work in an Horeca establishment while enjoying a non-scale net salary agreed between the parties, but subject to the legal minimum stipulated for flexi-salaries (minimum of 9.18 euros/hour) plus a flexi-nest egg for vacations (7.67% of the flexi-salary).

The net remuneration is exonerated from tax and a special employer’s social contribution of 25% is payable. The worker gains a net income from the flex-job which is higher than what would result from a normal occupation and the employer enjoys a lower total cost.

The Government decided to extend the possibility of flexi-jobs beginning on 1 January 2018 to the sectors of trade, both for small and middle-sized companies and for major distributors, whether in the food sector, retail trade or hairdressers and beauty care (the Law sets out a detailed list of the sectors concerned).

In addition, it also decided to extend this advantageous possibility to pensioned workers (excluding those enjoying a transition allocation), since they had already greatly contributed in the past to financing the social security system.

III. The introduction of a new profit bonus on profits that are distributed

The Government wishes to improve purchasing power and to encourage the development of companies. In this spirit, it proposed a measure allowing employers to grant to their salaried workers a bonus on profits to be distributed coming from the accounting year, a so-called “profit bonus”, with interesting tax and social treatment: the worker pays a solidarity contribution equal to 13.07% of the amount of the bonus and a tax of 7% (tax assimilated to income taxes), while for the employer the bonus is treated as a non-admissible expense and is therefore subject to corporate tax (29% for 2018).

Via this bonus, representing either a lump sum or a percentage of remuneration or a profit distribution, the employers can remunerate their salaried employees in a simple and flexible manner. The profit bonus can be identical for all the employees or categorised, without its being given as replacement for remuneration.

The given bonus can be granted beginning on 1 January 2018 (accounting year 2017). The total amount granted cannot exceed 30% of total gross wages paid by the employer.

IV. The introduction of an activation contribution in case workers are relieved of services while retaining remuneration

The practice of companies not requiring services from older workers while maintaining all or part of their remuneration outside the unemployment mechanism has kept on growing. To fight against this tendency which entails letting these persons stay at home while continuing to pay them rather than encouraging them to find a new orientation, the Law introduces a contribution of activation payable by employers starting on 1 January 2018 for workers whose services were dispensed with after 28 September 2017.

This special activation contribution is due (i) when an employee does not provide any services to the same employer during a full quarter year, except for legal suspensions (incapacitated, annual vacations, etc.), and (ii) in case the services are dispensed with during the notice period.

The rates of the activation contribution will be determined depending on the age of the worker at the moment when his or her services were dispensed with and will remain unchanged up to the legal pension age (according to a scale going from 20% of gross quarterly salary of a worker less than 55 years old, with a minimum of 300 euros, to 10% for those who are over 62 years old when they are relieved of serving, with a minimum of 225.60 euros).

The Law stipulates reductions and exonerations from this contribution in certain cases, for example if a training programme organised by the employer was imposed and is being followed by the worker.

V. Introduction of a new empowerment contribution for employing workers part-time

The Framework Legislation of 22 December 1989 establishes a legal obligation according to which the part-time worker must get priority consideration for a full-time job or part-time job declared vacant in the company when he or she applies for it.

To reinforce compliance with this obligation, when the request to be appointed to a vacancy is introduced by the part-time employee who has the status of part time worker with maintenance of rights and who benefits from a guaranty of income, an empowerment contribution is introduced and payable by the employer if he or she fails to honour the principle of priority. This contribution amounts to 25 euros per worker and remains payable so long as the legal obligation is not complied with.

The empowerment contribution shall be applied to contracts concluded as from 1 January 2018 and goes to the ONSS-Overall Management of Salaried Workers Establishing whether or not there are available supplemental hours will be verified on the basis of the ONSS declarations.

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PREVENTIVE APPARATUS AGAINST MONEY LAUNDERING AND FINANCING TERRORISM: ADMINISTRATORS MUST IDENTIFY THE ACTUAL BENEFICIARIES AND COMMUNICATE THEIR INFORMATION TO THE UBO REGISTER

Posted on 5 January 2018
Department : 
Corporate & Corporate Tax

Article 14/1 has been inserted in the Companies Code by the law of 18 September 2017 transposing the fourth AML directive (hereinafter, the “BC/FT Directive”). Article 58/11 was inserted in the law of 27 June 1921 on non-profit associations, foundations, European political parties and European political foundations.

I. Obligations of the administrators

Thus, non-profits, foundations and companies must collect and save appropriate, exact and up-to-date information regarding identification of their actual beneficiaries. What does this cover? At a minimum, the name, date of birth, nationality and address of the actual beneficiary(ies).

The administrators of non-profits, foundations and companies must communicate in the same month as information relating to the actual beneficiaries becomes known or modified, and they must do this by electronic means, sending the data collected to the register of actual beneficiaries, most commonly known as the “Ultimate Beneficial Owner or UBO register”.

Failure to comply exposes the administrators to a fine of from 50 to 5000 euros.

Furthermore, the administrators of the legal entities mentioned above must of course communicate to the regulated entities – when they comply with their obligations of identification of the actual beneficiary – the information so collected apart from the information on the legal owner.

Let us recall that by failure to comply the regulated entity cannot conclude business relations (so long as it does not honour its obligation to identify the actual beneficiary) and that the issue of a possible declaration in case of suspicions in this matter will be analysed.

II. Actual beneficiaries

The notion of the “actual beneficiary”, already introduced by the law of 18 January 2010 in the preventive apparatus, has been amended and more precisely set out.

Today, the notion of “actual beneficiary” covers three scenarios:

(i) a private individual or individuals who, in the final analysis, own or control the client, the client's representative;

(ii) the beneficiary of life-insurance contracts;

(iii) a private individual or individuals for whom a transaction is carried out or a business relationship is concluded

Companies, non-profits and foundations must gather the information on the first category.

The following are considered as owning or controlling in the final analysis:

(i) In the case of companies:

A. The private individual or individuals who own, whether directly or indirectly, a sufficient percentage of voting rights or a sufficient participation in this company's capital, including via bearer shares.
The Law stipulates that a direct participation will be considered as sufficient if a private individual owns more than 25% of the voting rights or more than 25% of the shares or capital of the company. Holding more than 25% is an indication of sufficient percentage for voting rights or for direct participation.
The Law stipulates in addition that a participation held by a company controlled by one or several private individuals or by several companies controlled by the same private individual(s) at a level of more than 25% for shares or more than 25% of the capital of the company, is a sufficient indication of indirect participation.

B. The private individual or individuals who exercise control over the company by other means.
The exercise of control by other means can be established in particular, the law tells us, according to the criteria mentioned in article 22, §§1 to 5 of Directive 2013/34 EU of the European Parliament and the Council dated 26 June 2013 relating to annual financial reports, to consolidated financial reports and to the reports relating to them by certain forms of companies.

C. If, after exhausting all means possible, and if there is no motive for suspicion, none of the persons mentioned in points (i) and (ii) is identified, or if it is not certain that the person(s) identified is/are the actual beneficiaries, the private individual or individuals who occupy the position of principal director.

(ii) In the case of non-profit associations and foundations:

A. The administrators and members of the board of directors;

B. Persons authorised to represent them;

C. The founders of foundations;

D. The persons responsible for daily management;

E. Private individuals or, if these persons have not yet been appointed, the category of private individuals in the principal interest of whom the non-profit association or the foundation was constituted or operates;

F. Any other private individual exercising by other means the control and final say over the non-profit association or the foundation.

III. UBO Register

Within the general administration of the Treasury of the Federal Public Service of Finance, a department is created responsible for keeping a centralised register of the actual beneficiaries and called the “UBO Register”.

We have seen that the administrators of non-profits, foundations and companies send it information. But who has access to it? The answer is in a Royal Decree still to be enacted….

In reality, the question of access to the UBO Register is controversial.

According to the parliamentary work, access is granted solely for the purposes of allowing the regulated entities to honour their obligations in a preventive way. Nevertheless, in the draft bill of the framework legislation, provision was made to amend articles 322 and 338 of the CIR 92 to permit the tax administration (i) to have access to the register and (ii) to exchange information with foreign tax authorities.

IV. What are the obligations of the shareholder?

Article 515a of the Companies Code has been inserted by the law of 18 January 2010 implementing the third directive. This provision removes the obligation for any private individual or legal entity which has acquired securities, whether representing capital or not, conferring voting rights in public limited companies (other than those subject to the obligation of transparency) and which have issued bearer shares or dematerialised shares, to declare to the company no later than on the fifth working day following the date of acquisition, the number of securities that it owns when voting rights relate to these securities reach a level of 25% or more of the total voting rights existing at the time of implementation of the transaction leading to the declaration.

This provision is amended and now stipulates that this obligation weighs on every private individual who directly or indirectly acquires the given securities.

V. Conclusion

The preventive apparatus has been greatly reworked with the transposition of the fourth directive. Preparation of the fifth directive is now underway.

One may confirm as regards identification of the actual beneficiary that the debate has come round full circle:

(i) the shareholder must declare to the company his or her participations greater than 25%;

(ii) non-profits, foundations and companies must gather exact, appropriate and useful information concerning their actual beneficiaries and must communicate this (i) to the UBO register and (ii) to the regulated entities if they fulfil their identification obligations in the preventive arrangements;

(iii) the regulated entities cannot enter into business relations or embark on operations if identification has not been made.

Thus, the preventive apparatus against money laundering leads to transparency.

This is still not sufficient in the view of certain States which would like the UBO register to be accessible to every tax authority, and not only to them. France supports accessibility of the given register to all third parties, in particular to investigative journalists.

This is a matter to be monitored…

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CAFETERIA PLAN: IT’S GRIMACE SOUP FOR THE ONSS

Posted on 8 December 2017
Department : 
Labour & Social Security

I. description of the problem

A ruling delivered on 8 March 2017 by the Labour Court of Liege, Neufchâteau division, provides us with the occasion to look into the question of introducing a “Cafeteria Plan” in one’s company and its admissibility by the ONSS.

II. Facts underlying the dispute

A company employing 135 persons called upon an advisory firm for assistance with its salary strategy. The latter found that the average salary of the employees was higher than the scales of the Joint Committee under which the company finds itself. In its report, the advisory firm suggested reducing the gross professional income of the employees by putting in place an alternative income which could take the form of a family allowance outside what is legally mandated and exempt from social security contributions.

Pursuant to this report, the company put in place a “cafeteria plan” for its employees, i.e., a flexible form of remuneration which lets the worker put together himself or herself or amend a part of his or her salary package. In this context, numerous employees opted for a conversion of their gross monthly remuneration into the non-mandated family allowance.

The cafeteria plan which was introduced did not alter the sum of the workers’ pensions; it did not modify their rights to unemployment pay and respected the minimum scales of the competent Joint Committee.

III. ONSS Inspection

A little more than three years after the introduction of the cafeteria plan, the ONSS carried out an inspection within the company and decided to make adjustments to the quarterly declarations filed by the company.

The ONSS decided to subject the complement to legally mandated family allowances to the social security contributions, explaining that the compensation paid by the employer as an addition to the benefits accorded by one of the branches of the social security are exempt from social security contributions only when:

  • The employer’s objective is effectively to grant an addition to the benefits accorded by one of the branches of social security;
  • The compensation retains its character of complement, a condition which the ONSS considers fulfilled if the benefit does not exceed the sum of 600 EUR per child per year.

Thus, in this instance, according to the ONSS none of these conditions is fulfilled.

On the one hand, the compensation exceeds the maximum amount authorised. On the other hand, the Office believes that the intention of the employer is not to add to the legally mandated family allowances because the supplement is not granted to all company workers who have children but only to those with whom a part of the remuneration has been negotiated.

Consequently, the ONSS has decided to subject the total amount paid out as extra-legal family allowances to the contributions of social security and not just the part exceeding the sum admitted per child and per year.

IV. Judgment of the Labour Court of Liege, Neufchâteau division

After having unsuccessfully requested that the ONSS withdraw its decision on adjustments, the company sought relief from the Labour Court, believing in particular that no provisions of the law determine an amount above which a benefit must be considered as remuneration.

The Labour Court ruled that a family allowance outside what is legally mandated constitutes remuneration liable to the social security tax. The company was the losing party.

V. Judgment of the Labour Court of Liege

The Labour Court of Liege revised the judgment and found ONSS to be in the wrong after examining the two arguments which it broached.

The first ONSS argument consisted of saying that by converting a part of its employees' gross remuneration into an addition to the legally mandated family allowances, the employer was not pursuing a social objective but a business objective, the employer wishing in reality to reduce the employer’s expenses.

The Labour Court dismissed this argument.

The law does not require that the intention of the employer be principally or exclusively social when he or she grants an additional social benefit and does not exclude that the employer also may be pursuing a business objective. It adds that the conclusion of a contract by which an employee agrees to forgo part of his or her remuneration in exchange for an additional compensation to an element of social security is not pursuing an illicit goal. Finally, the Court observed that if the objective pursued is effectively a business one for the employer, that does not make it less social for the worker, since the latter saw the amount of his or her net annual remuneration grow by approximately 3%.

Secondly, the ONSS raised the issue that the benefit was granted in a discriminatory manner insofar as only employees who had negotiated a part of their salary benefited from the supplement to the legally mandated family allowances. This did not convince the Court.

If the law requires that an employer who grants benefits complementary to the social security to his personnel must grant them without distinction to all workers belonging to the same category, this obligation is imposed on the employer and does not affect the notion of remuneration. Failure of the employer to respect this obligation cannot by itself justify the benefits in question being considered as remuneration. It is up to the company employees and not the ONSS to assert their right to a non-discriminatory scheme of social benefits.

VI. Conclusion

In this judgment, the Labour Court endorses, in principle, the “cafeteria plan” put in place by the company, allowing the employer and his or her workers to make the overall salary package flexible, in particular by reducing the gross monthly remuneration on which the social security contribution is calculated and by opting for a supplemental social benefit exempted from social contributions.

The Court also notes that the sole condition for a benefit granted by the employer as complement to the benefits accorded for the various branches of social security to be exempted from social security contributions is that the benefit or compensation granted have the purpose of offsetting the loss of income from work or to compensate for the increased expenses caused by one of the risks covered by the various branches of social security occurring. The exclusion of the notion of remuneration liable to social contributions is valid without any other restriction.

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DISMISSAL IN THE PUBLIC SECTOR: THE CONSTITUTIONAL COURT TACKLES THE COURT OF CASSATION?

Posted on 15 September 2017
Department : 
Labour & Social Security

I. description of the problem

One question which has long divided labour jurisdictions is that of knowing whether a public authority, when it is thinking of cancelling the labour contract of one of its contract agents must, as is the case with termination of on a statutory member of the staff, respect the general principles of good administration, and more especially the principles of prior hearing and of giving a formal rationale for the dismissal decision.

II. Position of the Court of Cassation

In our Tetralert for the month of October 2016, we notified you that the Court of Cassation finally resolved this controversy by its judgment of 12 October 2015 (Ruling no. S.13.0026.N) by stating that an employer in the public sector does not have to arrange a preliminary hearing of a contract agent before dismissing him or her, nor does the employer have to justify the dismissal decision. The Court simply found that the rules relating to the termination of an indeterminate length labour contract (CDI) (articles 32, 3°, 37 §1 par.1 and 39 §1 par. 1 of the law of 3 July 1978) do not require the employer to arrange a hearing for the worker before proceeding with dismissal. A judge who would decide this differently would be misreading the law.

III. The Constitutional Court questioned

By its judgment of 6 July 2017 (n° 86/2017), the Constitutional Court revived this discussion. The Court took up the interlocutory question of the French-speaking Labour Court of Brussels, which had heard a female worker who was engaged under a labour contract by the Brussels commune and alleged discrimination against her compared to her statutory colleagues because she was dismissed without any preliminary hearing.

In its ruling, the Constitutional Court states, firstly, that workers in the public sector, whether statutory employees or those engaged under a labour contract, are in comparable situations when the issue is to determine the conditions under which they can lose their jobs. It then found that unlike the contract staff, statutory employees have the right to a hearing by the public authority before a grave measure is taken linked to their attitude or to their behaviour. It deduces from this a difference in the way they are treated that cannot be reasonably justified by the difference in legal status by virtue of which they are engaged by the public authority. The Constitutional Court thus concluded there was discrimination in the case.

IV. Conclusion

The Constitutional Court does not contradict the Court of Cassation, but their argumentation, each in its own sphere of competence, arrives at opposite conclusions. The Court of Cassation notes that the rules relating to the termination of CDI stipulated by the law of 3 July 1978 do not oblige an employer to arrange a hearing for the worker before proceeding with his or her dismissal. By virtue of a general principle of good administration, there cannot be an exception to these rules by considering that the employer who does not give a hearing to a worker is at fault. But the Constitutional Court believes that the provisions of the law of 3 July 1978 on labour contracts which authorises a public authority to dismiss a worker under a labour contract without being obliged to arrange a preliminary hearing creates an inadmissible difference in the way this worker is treated and the treatment of statutory workers. The provisions of the law are thus unconstitutional because they are discriminatory.

In view of the ruling issued by the Constitutional Court, one can only advise public employers, when they are considering dismissing one of their agents under a labour contract, to proceed in advance with his or her hearing in order to listen to their means of self-defence.

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DON’T THROW AWAY THE "SOCIÉTÉ DE DROIT COMMUN/BURGERLIJKE MAATSCHAP" WITH THE BATH WATER

Posted on 4 July 2017
Department : 
Private Tax & Litigation

I. Saga of the split registration: Standpoint no. 15004

The saga of the split registration continues to make waves in the Flemish Region: this is due to the online publication on 26 April 2017 on the VLABEL website of the last update of Decision 15004, this time targeting the donation of the bare ownership of the shares of a société de droit commun/burgerlijke maatschap (i.e. a company without legal personality).

As a reminder, Article 2.7.1.0.7 of the Flemish Tax Code, hereinafter “FTC” (of Article 9 of the Inheritance Tax Code) contains a fiction according to which movable or immovable property acquired in usufruct by a person and bare-owned by the heirs of such person will be considered part of the succession of the usufructuary, unless it is proved that the acquisition did not disguise per se a benefit to the third party beneficiary. On the basis of an interpretation of the jurisprudence of the Court of Cassation, the administration had long admitted that contrary evidence was validly relied upon if the parties proved that a pre-donation (even from the parent to the child) had allowed this split acquisition.

It will be recalled, however, that this mechanism was included on the black list published by the Federal Administration in its circular of 19 July 2012 and was subsequently deleted in the circular of 10 April 2013.

However, the respite was short-lived, since by a decision of 19 April 2013, the administration considered that the contrary evidence required under Article 9 of the Inheritance Tax Code could not consist of a prior donation.

After being firmly called to order by the Minister of Finance, the administration finished by issuing a decision (RJ S9/06-07) on 18 July 2013 , according to which a prior donation can constitute contrary evidence under two conditions: (i) when the prior donation has been subject to the registration duties of the donation, or (ii) where it is demonstrated that the beneficiary of the donation could freely dispose of the assets; this would be the case, for example, if it were shown that the donation made by the acquirer of the usufruct was not specifically intended to finance the acquisition of the bare ownership of the split acquisition.

By a decision of 21 March 2016 (No. 15004), VLABEL took a position on the application of Article 2.7.1.0.7 of the FTC: with regard to the split purchase of movable or immovable assets, the position of VLABEL follows the aforementioned federal position.  Nevertheless, a supplementary mention has been added, diverging fundamentally with the federal position concerning split registration.

In effect, VLABEL specifies that Article 2.7.1.0.7 is also applicable to split registrations of securities and financial investments. Evidence contrary to the presumption may be reported in the same manner as described for the split purchase of property.

In other words, VLABEL goes exactly against the federal position since, in the latter’s decision, it is expressly stated that the decision on split acquisition does not apply by analogy to split registrations.

II. Application to the Société de droit commun

1. The shares of the société de droit commun/burgerlijke maatschap and the underlying assets

In its new version, VLABEL attacks the sociétés de droit commun/burgerlijke maatschap. As these do not have legal personality, they are - as VLABEL recalls - fiscally transparent. Accordingly, for VLABEL, when analysing the question of registration or inheritance taxes, the underlying assets need to be considered. Where the assets contributed to the société de droit commun/burgerlijke maatschap consist of securities or financial investments, the presumption of Article 2.7.0.1.7 of the FTC will apply. In the absence of the ability to provide proof of a previously registered gift (to reverse the liberality presumption), the registration of the underlying securities or investments that have been dismembered will be considered as a legacy.

This split registration will be either (i) material (as it appears in the Register of Shares or bank records) or (ii) legal (resulting from such acts as, for example, a gift with a usufruct reserve).

2. The income of the société de droit commun/burgerlijke maatschap

As regards the société de droit commun/burgerlijke maatschap, VLABEL goes a step further in its reasoning.

Thus, the presumption of liberality may also apply to the income generated from these securities and financial investments.

Indeed, if the income generated by these assets were themselves to be registered in bare ownership and usufruct (for the heirs, on the one hand, and the deceased, on the other) then Article 2.7.1.0.7 of the FTC would also apply to this income.

A summary table could be drafted as follows:

Pre-registered donation

Distributed civil fruits [income]

Use of the civil fruits by the usufructuary

Article

2.7.0.1.7

Yes

Yes

Full ownership

No application (attention, however, if the donation was made by the usufructuary in the three years preceding death: application of Article 2.7.1.0.5)

Yes

Yes

Usufruct-

Bare ownership

Application upon the

new

dismemberment

No

No

-

Yes on the whole (pre-donation - civil fruits and other income).

No

Yes

Full ownership

Application on the entirety, including civil fruits but possibility of reduction

Yes

No

-

Application on the civil fruits but not on pre-donation or capital gains

 

3. Replacement of the initial securities and financial investments

Standpoint 15004 specifies that the replacement of financial securities and investments initially registered in a split manner by other securities and investments that are also split up is not considered as a new split-up registration. Consequently, to rebut the presumption in Article 2.7.1.0.7 of the FTC, it will suffice for the bare owner to demonstrate an absence of a disguised liberality only for the initial registration.

4. Entry into force

The taxation will take place if the usufructuary is a Flemish resident at the time of death, irrespective of the residence at the time of the split registration of the securities that took place from 1 June 2017.

This also applies to the civil fruits received from that date even if the donation of the "shares" of the société de droit commun/burgerlijke maatschap was made earlier

III. Conclusion

Logically, the position of VLABEL is quite worrisome for several reasons.

As an initial matter, this decision (i) calls into question the enforceability of company contracts and (ii) will raise many questions as to the very notion of civil fruits.

Thus, as VLABEL confirms in an example under Standpoint 15004, capital gains are, in principle, not considered as civil fruits in the strict sense of the term, and are, by definition, not distributable. Moreover, there are still controversies concerning the attribution to the usufructuary of certain dividends. What, in practice, is the individualisation of these non-distributable incomes relative to the other types of company income over the years? There is reason to fear that the inheritance tax may not be claimed for the entirety.

In conclusion, what solution can be envisioned for Flemish residents wishing to transfer their household effects to their heirs without departing from the effective management of these assets?

First, for donations already made in the past, to ensure the transfer of civil fruits, as a whole, in full ownership to the usufructuary from 1 June 2017.

Then, in the future, it will certainly be advisable not to use a dismemberment. It is not necessary to "throw the société de droit commun/burgerlijke maatschap out with the bath water". If split-up registration is to be left out, it is still possible to continue to manage these assets through the intermediary of this company. In this case, the transfer of securities and cash must have been granted in full ownership and with an annuity, for example, in order to avoid the application of Article 2.7.1.0.7 of the FTA, which, as we have seen, only applies to situations of dismemberment in bare ownership and the usufruct of securities and financial products.

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FREE PROVISION OF A BUILDING BY A COMPANY TO ITS DIRECTOR: WHERE ARE WE REGARDING THE THEORY OF REMUNERATION?

Posted on 4 July 2017
Department : 
Corporate & Corporate Tax

Any benefit received by director from its company constitutes remuneration.  This will also be the case if the company pays for private costs. This benefit of any kind will therefore be taxed as such, in principle, on the basis of the actual value of the benefit thus granted or, when the Royal Decree implementing the Income Tax Code derogates from such, on a flat-rate basis.  For instance, this will be the case for:

  • Vehicle expenses;
  • The provision of a building;
  • The provision of heating and/or electricity;
  • The provision of a PC and/or an Internet connection;
  • Etc.

It is undeniable that this mechanism allows a reduction of the tax burden.  The fiscal appeal of this optimisation, however, presupposes that the expenses incurred remain deductible to the company.  It is on this basis that the administration has been fighting for many years against the structures it considers (excessively) abusive.  This is particularly true for villa-houses and/or costs related to buildings (quasi-) exclusively used for the private use of the director(s).

After more than fifteen years of jurisprudence manifestly contra legem (contrary to the current state of the law) (point I & II below), the recent jurisprudence developed by the Court of Cassation, driven by the Courts of Appeal of Antwerp and Ghent, is even more worrying (point III below).

I. FROM THE DERWA JUDGEMENT TO THE so-called THEORY OF REMUNERATION

The Income Tax Code (CIR 92) has always provided that an expense is deductible so long as it:

  • is related to the professional activity;
  • has been granted for the purpose of acquiring or retaining income;
  • was incurred during the taxable year;
  • is based on documentary evidence.

As formidable as this provision is, which leaves the entire burden of proof to the taxpayer, it has not prevented the Court of Cassation from further strengthening its strictness by limiting deductible expenses to expenses "inherent in the exercise of the profession, that is to say, those that necessarily relate to the corporate activity”.

By adding a condition to the law, this jurisprudence led to the practice of developing two counter-measures, particularly in the context of split-purchases of buildings used wholly or partly for the private use of the directors of the company:

II. When the Court of Cassation becomes stricter again, the government gets scared...

In two judgements rendered in June 2015, the Court of Cassation directly revisited this jurisprudence. It considered, in effect, that the administration added a condition to the law when it refused the deduction of an expenditure on the ground that the latter was solely intended to obtain a tax advantage and was therefore not linked to the corporate purpose of the company that has presented it.

This turn created a certain emotion within the government which at the time advocated for a modification of the law motivated, according to it, by the fact that "constructions in which secondary residences have been integrated into a company may be counteracted by rewriting Article 49 of the Belgian ITC".

This legislative amendment may not even be necessary...

III. Backlash

In two judgements rendered on 14 October 2016 - one confirming a judgment of the Antwerp Court of Appeal, the other confirming a judgment of the Court of Appeal of Ghent, the Court of Cassation came to strengthen the tools of the administration.

It now considers that costs borne by the company for its director and which constitute taxable remuneration for such a person are not automatically deductible by the company.

According to this jurisprudence, it is still necessary for the company applying for the deduction of those costs to be able to demonstrate that they were granted for the purpose of acquiring or retaining income and that compensate, as a result, the services actually provided by the director to the company and for which the company is capable of proving the evidence.

This new jurisprudence raises the question more particularly as one of those two judgements concerned a single-person medical practice whose building expenses, constituting remuneration for the director, were rejected on the grounds that the company did not establish the reality of the services provided ... It is difficult to imagine how the company was able in this case to generate any income without these services.

IV. CONCLUSION

The circumstances in which these decisions were made are of concern.

The only way, in our view, of understanding these decisions without undermining the principle of non-interference by the administration in the appropriateness of the management decisions of a company, consists of making the connection with the jurisprudence, otherwise remaining constant, of the Court of Cassation regarding management fees:

  • the reality of the benefits can be established on the basis of a set of elements whereby only a contract and uncontested invoices are sufficient for this purpose;
  • the administration may not, on that basis alone, call into question the level or structure of the remuneration;
  • unless, of course, it can demonstrate that the costs incurred "unreasonably exceed professional needs”, but this implies an entirely different approach.

Unfortunately, it is not the direction adopted in the two jurisdictions of the Court of Appeal that gave rise to this jurisprudence.  A recent judgement rendered by the Antwerp Court of Appeal on 28 March 2017 testifies to this.

We thus hope that the Court of Cassation will be (very) quickly called to clarify its jurisprudence, and this time with the rigour that is required.

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LAW ON FEASIBLE AND MANAGEABLE WORK (PART II)

Posted on 4 July 2017
Department : 
Labour & Social Security

In our Tetralert of April 2017, we presented the measures that make up the "Base" of the Law of 5 March 2017 on Feasible and Manageable Work, which entered into force on 1 February 2017 and applies to all enterprises and workers. The measures comprising the "Menu", which are the subject of this Tetralert, offer the sector the possibility of developing tailor-made rules. Each sector can enter into negotiations to activate these opportunities at the sectoral or company level.

The menu consists of a first section on “manageable work” and a second section on "feasible work".

I. Manageable work

Measures to make work more manageable include:

1. Expansion of Plus minus conto

The Plus minus conto system, initially limited to the automotive sector, is made available to all private sector companies. This system allows companies to employ workers for up to ten hours a day and forty-eight hours a week without any extra pay, provided that the average weekly working hours are met over a maximum reference period of six years. However, in order to implement it, companies must meet relatively strict cumulative conditions (namely, they must belong to a sector characterised by strong international competition, be subject to production or development cycles spanning several years, etc.), so that only a limited number of companies, in the end, will be able to implement it.

2. Temporary employment contract for an indefinite period

A temporary employment agency can now conclude an employment contract with a temporary worker for an indefinite period, setting the general conditions for successive interim assignments for which the temporary worker will be responsible (e.g., geographical territory in which the missions will be performed, setting the periods of work and rest, etc.). This contract must also describe the jobs for which the temporary worker can be sent to a service user. Prior to each assignment, a letter of assignment indicating, in particular, the duration of the contract, the work schedule and the agreed remuneration must be provided to the worker. On the one hand, the contract for an indeterminate period makes it possible for temporary employment agencies to establish a "pool" of workers whose profile is highly sought after and, on the other hand, to guarantee temporary workers the right to a severance payment in the event of the termination of their contract by the temporary agency. Temporary workers are also entitled to a guaranteed minimum wage during the periods of intermission. In order for this system to be fully implemented, a collective labour agreement (CLA) has yet to be adopted by the Joint Committee on Temporary Work, which determines, in particular, the model of the interim contract for an indefinite period and the methods for calculating the guaranteed wage.

3. Reform of the employers' group

Several companies may constitute a group of employers (EG) which hires workers to be made available to them. This system allows the shared employment of workers between companies that either do not need or cannot afford to employ them full-time. On the one hand, the Peeters Act simplifies the ministerial authorisation procedure to operate as an EG, which can now be issued for an indefinite period and, on the other hand, sets the maximum number of workers that can be employed by the EG at fifty. This threshold may be increased by royal decree. Finally, the members of the EG will be jointly and severally liable for the EG's tax and corporate debts, so that each member may be obliged to clear all the debts of the group.

4. The simplification of part-time work

Today, the law obliges the employer to include all of the part-time schemes and part-time working hours in the company within the work regulations. This obligation will be abolished as of 1 October 2017, both for fixed and variable part-time working hours.

In the case of variable working hours (which do not specify in advance the working days and hours), the work regulations must set a general framework, including the daily range and the days of the week during which the employment services can be provided, the minimum and maximum daily times, the means and the time period to communicate the schedules to the workers concerned (at least five working days in advance, unless otherwise agreed). If, in addition to the working hours, the working conditions are also variable, the working regulations must mention the minimum and maximum weekly working hours. The employment contract may, for its part, appropriately reference the general framework and should mention only the duration of work per week. The companies have until 31 March 2018 to modify their working regulations.

In the event of a fixed schedule, the employment contract is self-sufficient, since the contract expressly mentions the agreed upon working scheme and hours. If the schedule is organised by cycle, namely, a succession of daily schedules that spans more than one week, the employment contract must detail this cycle and indicate the order in which the schedules are performed.

Finally, the obligations relating to the advertising of part-time working hours and the monitoring of derogations from the normal working hours are simplified and adapted to current technologies.

These measures take effect on 1 October 2017.

5. E-commerce

A new express derogation from the prohibition of night work (namely, work between 8 p.m. and 6 a.m.) is foreseen for the performance of all activities related to electronic commerce in companies within the distribution sector.

II. Feasible hours

The measures to make work more feasible include:

1. Floating hours

While until now floating hours were only tolerated by the Social Inspectorate, floating hours have now been legalised. The floating timetable system allows the workers to set the beginning and the end of their working day, as well as their breaks, in compliance with the "mobile ranges" and hours of obligatory presence, called "fixed ranges”, set by the employer. It is therefore the workers who determine, to some extent, their own work schedule. The worker shall each month receive the normal remuneration for the average working week at the company. No extra pay is due, provided that the worker does not work more than nine hours a day and forty-five hours a week.

At the end of the reference period, which is normally three months, a positive or negative balance of up to maximum 12 hours may be carried over to the next reference period. If the worker is deficient by more than twelve hours, the employer may recover the undue salary beyond twelve hours on the remuneration of the following months. By contrast, if the worker has a positive balance of more than twelve hours, then such a worker shall only be entitled to the normal remuneration for these overtime hours provided that they have been worked at the request of the employer.

The company can introduce the system of floating hours, either by the conclusion of a CLA, or by the modification of the working regulations. The company must be provided with a work time measurement system, enabling the worker to consult, at any time, the positive or negative balance with respect to the duration of work at the company.

2. Leave for Palliative Care and Time Credit

The total duration of the complete interruption of a career for palliative care is increased from two to three months. In concrete terms, the worker will now be able to twice extend by a month the leave taken for palliative care, each time for a period of one month.

The social partners, at the inter-professional level, have extended the right to time credit for reasons of care or assistance from thirty-six to fifty-one months.

It should be noted that access to the credit time system is restricted to private sector workers, while the system of career breaks is available to both public and private sector workers.

3. Career savings

The law offers the worker the opportunity to save time, such as unfulfilled extra-legal leave, voluntary overtime hours or the overtime worked in the floating timetable system, which may be carried over. On the other hand, the worker will not be able to save legal holidays, the replacement days for statutory holidays or the days for the reduction of working time (RTT). The worker can then exhaust the "time saved" by taking leave later in the course of the employment period. At the end of such contract, the worker shall be entitled to the full payment of the savings.

The effective implementation of this system in the company involves the conclusion of a sectoral CLA within six months, after referral to the Chairman of the Joint Commission. In the absence of a sector-wide CLA concluded within this period, the companies may, by means of a CLA concluded at the company level, particularly determine the periods of time that can be saved and the manner in which this time can be used.

The law nevertheless allows the corporate partners to harmonise the system by concluding an inter-sectoral CLA until 1 August 2017. If this CLA is created, the sectoral CLA that may have been concluded in the interim will no longer have any relevance.

4. Gift of leave

The law allows workers to donate their days off to colleagues who have a seriously ill child under the age of twenty-one. Only leave that the worker freely disposes of may be assigned. There is no question, therefore, of giving up the four weeks of legal holidays, but only extra-legal holidays, granted by the employment contract or by a CLA concluded at the company level (e.g.: seniority leave) or RTT days. The gift of leave, which must be accepted by the employer, is anonymous and without any compensation to the donor. On the other hand, the sick child's parent must have exhausted all of their days of vacation and rest to benefit from the gift. The application may not be for more than two weeks, but is renewable.

The introduction of the gift of leave in the company involves the conclusion of a sector-wide CLA. A gift of leave may be introduced by a company's collective labour agreement only if no sector-wide CLA is adopted within six months of the referral to the Chairman of the Joint Committee, or, if there is no trade union delegation, by a work regulation.

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LAW ON FEASIBLE AND MANAGEABLE WORK – PART I

Posted on 7 April 2017
Department : 
Labour & Social Security

On 23 February 2017, the Chamber gave the green light to the draft law on feasible and manageable work submitted to it by the Michel government on 4 January 2017. The law, baptised the “Peeters Law,” was published in the Moniteur on Wednesday, 15 March.

I. INTRODUCTION

The law aims at putting in place the framework for a modernised labour law; it has two groups of provisions:

  • The first, baptised the “base” or core, comprises provisions which shall be applied for all companies and all workers;
  • A second, which Minister Peeters has called the “menu,” consists of a legal framework allowing the various economic sectors to develop specific rules. The menu consists of a first section on “manageable work” and a second section on “feasible work.”

In this Tetralert, we set out for you the four measures which constitute the “base.”

The measures of the “menu” will be presented to you in our next Tetralert (part II).

II. THE BASE

The base consists of four measures:

  • annualisation of working time;
  • the arrangements for additional optional hours and increase of the ‘internal limit’;
  • a new scheme concerning the training of workers;
  • the legal framework for occasional telework.

1. Annualisation of working time within the scheme  of the “limited flexibility”

The “limited flexibility” scheme stipulated by article 20bis of the labour law allows the employer to impose variable working hours depending on the rhythm of business activities and/or the needs of the company. By modifying the work regulations or by concluding a collective bargaining agreement (CBA), the workers can serve up to two hours more or less than the normal daily schedule without exceeding the limit of nine hours per day and up to five hours more or less than the normal weekly schedule, without exceeding the limit of forty-five hours per week, so long as the work week in force in the company is respected on average over the course of a reference period.

Concretely, in a company in which the normal working time is set respectively at thirty-eight hours per week and at seven hours thirty-six minutes per day, within the framework of a fixed schedule, “limited flexibility” makes it possible to occupy the workers during at least five hours and thirty-six minutes and at a maximum nine hours a day; at a minimum thirty-three hours and at a maximum forty-three hours per week. 

Work in excess of the daily and weekly limits, but within the limits authorised and within the displayed schedule, does not trigger payment of an overtime premium. The worker is paid on the basis of the average weekly schedule.

This “limited flexibility” requires that certain measures of advance information sharing be respected, among them the obligation to display the updated schedule at least seven days before it comes into force.

Whereas the law stipulated until now that the average work week must be respected over a reference period which cannot be greater than one year, while authorising the possibility of setting a shorter reference period, for example, a trimester, the Peeters Law establishes, in inviolable manner, a reference period equal to the calendar year (or to another period of twelve consecutive months). Henceforth, it is no longer possible to stipulate a shorter reference period.

2. Supplemental hours

2.1. Work more to earn more

In the event of supplemental hours, the law imposes, unless exceptions, (i) the payment of an overtime premium of 50% or 100% of the compensation, depending on whether the hours were worked during the week (including Saturday) or on Sundays and holidays and (ii) the granting of compensatory rest time.

Whereas the overtime premium is paid at the end of the payroll period during which the additional hours were performed, the normal compensation applied to these hours is paid at the time when the compensatory rest is granted.

The Peeters Law henceforth allows workers to voluntarily perform a quota of one hundred supplemental hours which need not be compensated by rest time. At the end of the payroll period, the worker shall receive the overtime premium linked to the supplemental hours served, as well as the normal compensation relating to these hours. The worker who opts for this system can thus earn more, since he will no longer be obliged to offset his supplemental working time by equivalent compensatory rest time.

2.2. Raising the “internal limit”

In order to avoid forcing workers to accept a heavy work load over too long a period, the law limits the maximum number of supplemental hours that a worker can perform. In other words, once the internal limit is reached, the employer must immediately grant a compensatory rest period.

Up to now, when the reference period was three months, the internal limit was seventy-eight supplemental hours. When the reference period was twelve months, this limit was established at ninety-one hours, and could even be stretched to one hundred thirty or one hundred forty-three hours by means of an agreement within the company or via the Joint Committee.

Under the Peeters Law, the principle remains the same, but the internal limit is now established at one hundred forty-three hours, whatever the length of the reference period stipulated within the company.

If the work week in force in the company is thirty-eight hours over a reference period of twelve months, the worker must necessarily be given a rest before the end of the twenty-fourth work week if he has worked on average forty-four hours a week since the start of the reference period. Failing that, he will exceed the internal limit (24 x 44 hours – 24 x 38 hours = 144 hours). Under the same working conditions, when the reference period is three months, the worker will not have reached the internal limit at the time of mandatory granting of compensatory rest at the end of thirteen weeks of the reference period.

The “voluntary” supplemental hours at issue in the preceding point are taken into consideration for the internal limit, except for the first twenty-five hours. Put another way, the maximum internal limit is increased by twenty-five hours for the voluntary workers who perform up to one hundred “voluntary” supplemental hours.

3. The target of individual training

The present target of the private sector is to allot 1.9% of total payroll to training. That is now replaced and as from 2017 the target is five days of training per equivalent year of full time employment. This target shall be given concrete form either by the sector’s collective bargaining agreement or by the creation of an “individual training account” at the company level, with its operation still to be determined.

In the absence of an initiative within the sector or the company, the workers can claim two days on average of training per year and per full working time equivalency year starting in a balanced manner between the two.

Training time gives the right to normal compensation whether it is allotted during or outside the working hours.

The legislator invites the King to stipulate a scheme of exemptions for SMEs and goes so far as to exclude the very small companies (engaging less than ten workers), believing that in these cases training is done in an informal manner.

4. Occasional telework

The law introduces a framework for telework done on an occasional basis; this framework is more flexible than the one existing for telework arranged on a regular basis. Thus, the employer can simply write into the work regulations statements that normally are the subject of an amendment to the contract for each worker individually.

The worker can ask to benefit from it in cases of force majeure (e.g., his car is out of order), or for personal reasons (e.g., visit to a doctor) assuming that the duties he performs are compatible with telework. The worker must introduce his request within a reasonable period of time, stating the motive that justifies his request. If the employer believes that he has no right to make this request, for example, for reasons linked to the operational needs of the department or of the company, he explains this when he notifies the employee of his decision in writing.

We advise employers to modify their work regulations so as to list there, as the law authorises them, the activities and positions that are incompatible with telework. In addition, he sees to whether a computer will be put at the disposal of the worker or if he can claim lump-sum reimbursement of costs resulting from telework. Finally, the employer can also benefit from these provisions to establish the time period during which the worker must introduce his request.

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