Workable and flexible work
- Leila Mstoian - Marcel Houben
Belgian employment law includes since a number of years particular stipulations relating to
homework and teleworking performed at a regular basis (part time or full time).
Teleworking at an occasional basis as a result of force majeure or personal reasons has now been regulated by the law "Workable and Flexible Work".
The industrial relations partners are not very pleased with this initiative of the legislator because they were negotiating, within the framework of the National Labour Council, a collective labour agreement on occasional teleworking. It seems like the legislator wanted to set aside the industrial relations partners: they were given the opportunity to enter into a collective labour agreement on occasional teleworking before 1 February 2017; if not, the stipulations of the law on occasional teleworking become effective retroactively as from 1 February 2017. Offering the industrial relations partners the occasion to establish a regulation before 1 February 2017 by statute, approved on 23 February 2017! In our opinion, a particular way of operating.
Occasional teleworking is defined as "… the organisation and/or the performance of the work
in the framework of an employment contract, where, by using information technology, work which
could be performed at the premises of the employer, is occasionally and not on a regular basis
performed outside these premises." (free translation)
An employee may call upon performance of occasional teleworking if it is impossible for him to
perform his work at the employer’s premises due to force majeure or personal reasons to the extent
his function and/or activities are compatible with occasional teleworking.
He files his request with the employer within a reasonable delay; his request must include the reasons why occasional teleworking is applied for.
The regulation does not impose an obligation on the employee to give an indication to the employer of the duration of the occasional teleworking. Based on the examples, cited in the Explanatory Memorandum, it seems like the legislator has very short periods of occasional teleworking in mind.
Furthermore, the employee’s request is not subject to any formal requirements. It may be in writing, verbally, over the telephone, by e-mail, …
The employer, on the contrary, who is of the opinion that he cannot honour the request, must state the reasons of his refusal in writing as soon as possible.
How all this will be functioning in practice (e.g. in the case of force majeure, which is a sudden, immediate and unexpected event, rendering it impossible for the employee to perform the work at the employer’s premises) remains, in our opinion, an open question.
In addition, the employer and the employee are expected to agree on certain aspects of the occasional teleworking, including:
Once more, how such an agreement can be established between both parties on very short notice,
such as in the case of force majeure, remains an open question and what happens if such agreement
could not be made on such very short notice is not clear.
Furthermore, whether such an individual agreement can be made between the parties upfront in order to be applicable for all subsequent occasions of occasional teleworking or whether such an agreement should be made at the occasion of each request separately is not clear either.
Problems in that respect, as described above, can be avoided.
The law provides for the possibility to settle certain issues of occasional teleworking by setting up, either by collective labour agreement or by the work regulations, a framework, within which occasional teleworking may be applied for.
This framework should include the following elements:
The occasional teleworker is entitled to the same employment conditions, workload and
performance requirements, as the ones applicable to a worker performing similar work at the
The occasional teleworker organises himself his working time in consideration of the applicable hours of work. This implies that he is expected to perform the same number of hours of work, but that the hours may be performed outside the normal work time schedules, as applicable.
Finally, the occasional teleworker is entitled to choose himself the place where the work is performed, that is either at his place of residence or elsewhere.
The same issues raise within the framework of the work accident insurance, with respect to the employee’s coverage as the issues arising in the case of regular teleworking. On the other hand, while these issues have been addressed in the collective labour agreement n° 85 concerning regular teleworking, they have not been addressed in the law on "Workable and Flexible Work".