CBA 162 introduces right for employees to request flexible working arrangements

On 27 September 2022, the social partners in the National Labour Council concluded Collective Bargaining Agreement No. 162 introducing a right to request flexible working arrangements. It transposes the section on flexible working arrangements in Directive (EU) 2019/1158 of 20 June 2019 on work-life balance for parents and carers. This collective agreement applies to all employees employed in the private sector and entered into force on 1 October 2022.

1. What is a flexible working arrangement?

The right to request a flexible working arrangement means that the employee may request an adjustment to his/her existing work pattern. This can take the form of:

• remote work, e.g., working from home;
• an adjustment of the work schedule;
• a reduction in working hours.

2. Who can request a flexible working arrangement?

a. Caring for a child

An employee has the right to request a flexible working arrangement to care of his/her own child or a child of a partner whom he/she is living with or married to, up to the age of 12 years.

The age limit of 12 years is increased to 21 years when the child is at least 66% affected by physical or mental incapacity or suffers from a serious medical-social condition.

The age requirement of 12 or 21 years must be met no later than during the period of the flexible working arrangement. If the employer prefers to postpone the arrangement, but the application was done correctly and within the applicable deadline, the period of flexible working arrangement may exceed the age limit.

b. Personal care or support of a family member or relative who needs significant care or support for a serious medical reason.

An employee who wishes to provide personal care or support to a family member or relative in need of significant care or support for a serious medical reason also has the right to request a flexible working arrangement.

The serious medical reason must be demonstrated by a medical certificate from the attending physician.

3. Seniority condition

The employee must be employed by the employer for six months before applying for flexible working arrangements. Periods of interim employment will be taken into account.

4. Application Procedure

The employee must make the request in writing to the employer three months in advance. This deadline may be shortened in mutual agreement.

The application shall mention:

• the type of flexible working arrangement being requested;
• an explicit reference to CBA No. 162;
• start and end dates of the flexible working arrangement; and
• the healthcare purpose for which the flexible working arrangement is requested.

At the latest on the day of commencement of the flexible working arrangement, the employee shall hand over the document(s) substantiating the care purpose invoked.

The employer must respond in writing within one month of the request. Unless it accepts the request, it must also justify its answer in writing. In its assessment, the employer shall take into account the needs of the company and, as far as possible, the needs of the employee. The employee may repeat his/her request if the employer does not respond within one month.

If the employer agrees, the employer and employee shall work out together the details of the work arrangement.

The employer may postpone the flexible working arrangement based on concrete and justified reasons related to the operation of the enterprise. It shall communicate these concrete reasons to the employee within one month of the request. This postponement may not result in making the flexible working arrangement impossible.

The employer may also make a reasoned counter-proposal. The employee may accept or refuse this.

If the request is refused, the employer shall communicate the concrete reasons for the refusal to the employee within one month of the request. The reasons may be the duration of the flexible working arrangement, the resources and operational capacity of the company. They are concretely justified if the employer indicates the specific problems related to the operation of the enterprise in the concrete situation of the application.

This concrete justification may always be repeated by the employer if the same employee repeatedly makes identical requests at short intervals, as long as the employee’s situation remains unchanged.

5. Social consultation procedure and modification to working conditions

If the adjustment of the working pattern involves a change in the terms and conditions of employment regulated by a collective agreement or by the work rules, the appropriate procedure must be followed to adjust the instrument at hand and, if necessary, a social consultation must be initiated before the competent consultation body (works council or union delegation).

Unless an adequate framework exists at company level, sectors may also establish a framework for flexible working arrangements, but without changing the seniority condition and without prejudice to the working arrangements introduced at company level.

6. (Early) return

The employee has the right to resume his/her original work pattern after the period of flexible working arrangement.

With a written, reasoned request, both the employer and the employee may request early suspension or termination of a current flexible working arrangement to return to the original work pattern. The other party’s written, reasoned response must follow within a maximum of 14 days of the request. If the employee refuses to comply with the employer’s request, the employee should not be adversely affected.

7. New application or extension

Each employee has the right to request a new flexible working arrangement or to request an extension of his/her current flexible working arrangement for a maximum of 12 months.

If the extension is part of the same purpose and work pattern adjustment, the application procedure does not need to be followed and the extension can be done by mutual agreement.

8. Deviating regulations

By collective agreement at sector or company level, it is possible to deviate from:

• the maximum period of twelve months for flexible working arrangements;
• the three-month deadline for submitting the application;
• the simplified renewal procedure for a new application.

At company level, these adjustments may also be made by agreement between the employer and the union delegation or, in the absence of union delegation, by mutual agreement between the employees concerned and the employer.

Deviations can also always be made by mutual agreement between the employee concerned and the employer.

9. Protection against adverse action and dismissal

An employee exercising the right to a flexible working arrangement is protected against:

• adverse measures by the employer (such as non-renewal of a fixed-term contract); and
• dismissal.

Adverse measures and dismissal are permitted only if the reasons for them are extraneous to the exercise of the rights resulting from CBA No. 162.

The protection runs from the written request until two months after the end of the flexible working arrangement or until two months after the refusal of the request. If no flexible working arrangement was initiated, protection ends two months after the requested start date.

If the employee cites facts suggesting that he/she was adversely treated or dismissed because of his/her request for a flexible working arrangement, the employer will have to prove that this was based on grounds foreign to the exercise of the rights granted in CBA No. 162.

If the employer fails to meet his burden of proof, he may be sanctioned to compensate the employee with two to three months’ wages. In case of dismissal, this compensation amounts to four to six months’ wages. The protection indemnity cannot be cumulated with other types of compensation following termination of the employment contract except with the indemnity in lieu of notice, the indemnity for loss of clientele (for sales representatives), a non-competition compensation and an additional compensation on top of of social security benefits. The protection indemnity may also be cumulated with a non-discrimination compensation, except on the grounds of family responsibilities.

10. Neutralisation (CBA No. 103/6).

The periods of reduction in work performance following a flexible working arrangement are neutralised for the provisions of the limits to take time credit. This means that the use of flexible working arrangements does not impede the employee’s ability to take time credit.

Key Take-aways

Employees now have the right to request a flexible working arrangement. The employer can refuse this request on reasoned, concrete justifications. He can also delay the arrangement or make a counterproposal.

Employees who have requested a flexible working arrangement are protected from adverse treatment and dismissal.