Save the date 26 January 2016

Our "HR Law Focus" newsletter is released each time we see new legislation or case law that we believe might be important for your business.

Over the past few months the government has been very active. It is time to summarise for the HR professionals you are the new legislation as well as the initiatives taken which will be put into legislation soon and which might have an impact on your daily practice. Therefore mark your agenda for Tuesday 26 January 2016 lunchtime for HR Law lunch seminar. As a preparation to this seminar we will in a series of newsletters - although not exhaustive – briefly touch upon the issues covered during the HR Law lunch seminar.

Is travel between home and the workplace working time?

The Court of Justice of the European Union ruled on 10 September 2015 (Judgment C-266/14) that in certain circumstances, the time that workers who are not assigned a fixed or habitual place of work spend travelling each day between their home and the premises is “working time” within the meaning of the Directive concerning certain aspects of the organisation of working time.

The question focused upon in the judgment was whether the time spent travelling from home to the first customer should be taken into consideration in calculating the number of hours worked and thus as falling within the strict maximum limits on working time. The CJEU is of the opinion it is working time.

The judgment has undoubtedly consequences for some Belgian employers, should they find themselves in a situation such as the one described above. At present, many companies, and even some sectoral collective labour agreements, do not consider the travel time between home and the customer to be working time. The upper limit to the number of working hours will therefore – in those cases – be reached more quickly; customer service will take more time and therefore cost the employer more.

The consequences of the judgment need to be examined, however, in the light of the facts underlying the judgment. We will during the HR Law lunch seminar elaborate on how to avoid that the travel time between home and the workplace is not regarded as working time.

Costs proper to the employer

In an interesting decision of 7 September 2015, the Belgian Supreme court decided that the Social security authorities cannot impose that the reimbursement of transport costs or costs proper to the employer are to be proven by the employer  for the costs not to be defined as remuneration subject to social security contributions. However the facts concern a period before the entry into force of the reverse of the charge of the proof. Indeed before 1 October 2010 the Social security authorities had to proof that costs reimbursed by the employer were not deemed to cover actual costs; as from 1 October the employer needs - on the basis of a legal text -  to proof that the reimbursement covers real costs (article 14§4 act of 27 June 1969).

In the case at hand, an employer had based the amount to be reimbursed on the outcome of a social audit by the authorities (sociale inspectie/inspection sociale). After the company had been transferred, the new employer had continued to pay the same amounts of lump sum amount as a cost proper to the employer. The social security authorities challenged this position stating the lump sum amount did not cover real costs. The employer however did prove the real cost – they were even higher that the lump sum reimbursement.

The court stated that he had not to prove the costs as the legislation did not state this at that time and as such it was up to the social security authorities to evidence the lump sum reimbursement was actually remuneration subject to social security.

Given the change of legislation in 2009, effective in 2010, it is wise to evaluate the lump sum allowance in relation to reality and certainly to draft a proper policy detailing the costs and what they cover. The social security authorities have in this respect accepted in numerous files a distinct repartition/ventilation of costs. During the HR Lunch seminar we will detail what elements to take into account to the draft the appropriate cost policy.   

New salary amounts (2016)

General

From 1 January 2016, the applicable annual remuneration thresholds for various employment law purposes are:

• €33,221 (legal base amount: €16,100; 2015 amount: €33,203) – non-competition and training clauses.
• €66,441 (legal base amount: €32,200; 2015 amount: €65,406) – non-competition, arbitration clauses, type B work permit for managerial staff.

These amounts also apply to existing employment contract clauses. If salary conditions are not complied with, the clause will be null and void, i.e. non-enforceable by the employer.

Amounts of annual salary for immigration purposes – highly skilled and managerial positions

From 1 January 2016, companies submitting new and renewal type B work permit applications must confirm that non-EEA and non-Swiss national workers will be paid at least the equivalent of the following annual salary: Highly skilled foreign workers must earn a minimum annual gross salary of €39,824.

• Managerial and executive-level positions must earn a minimum annual gross salary of €66,441.
• To apply for a blue card, employees have to earn a minimum annual gross salary of €51,494.

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