Newsflash
Collective employment relations

Although telework has been the norm for some time as a measure to prevent the spread of the Covid-19 virus, an appropriate legal framework specifically for telework in times of Covid-19 was lacking. The National Labour Council decided to respond and created a new collective bargaining agreement (CBA) on 26 January 2021 that provides a specific framework for telework recommended or required as a result of the Covid-19 crisis.

Telework in Belgium

Belgian labour law comprises two systems of “telework”: structural telework, regulated by CBA No. 85, and occasional telework, regulated by the Act on workable and agile work. The difference between structural and occasional telework is that structural telework is performed on a regular basis while occasional telework is only incidental (e.g. due to force majeure or personal reasons of the worker).

With the entry into force of CBA No. 149 on 26 January 2021, a new, temporary regime specifically for telework recommended or required by the government as a result of the Covid-19 crisis has been added to Belgian labour law.

CBA No. 149

CBA No. 149 only applies to companies that had not yet developed a telework scheme by 1 January 2021 in accordance with the provisions on structural or occasional telework. Therefore, nothing changes for companies that have already developed a telework policy. For companies that do not yet have a scheme, it is still possible to develop an instrument for an indeterminate period based on CBA No. 85 on structural teleworking.

Principles regulating telework

The first part of CBA No. 149 provides a number of principles and a frame of reference that companies must take into account when making agreements on telework in times of Covid-19. For example, agreements must be made regarding the provision of equipment (or compensation for the use of the teleworker’s own equipment), as well as the additional connection costs. Furthermore, CBA No. 149 also assumes that the teleworker organises his or her work within the framework of the working hours applicable in the company. In addition, CBA No. 149 refers to the possibility for the employer to exercise appropriate and proportional control over the results and/or the execution of the work. In contrast to CBA No. 85, CBA No. 149 expressly emphasises the need to make agreements on the (un)accessibility of the teleworker in order to take into account the “reconciliation of telework and private life”.

CBA No. 149 is less formalistic than CBA no. 85, in the sense that no annex to the employment contract is required. The agreements can be laid down in a company collective agreement, the labour regulations, an individual agreement, but also in a telework policy. CBA No. 149 stresses that it must be possible to reach agreements flexibly and that they must be communicated explicitly, e.g., via intranet, e-mail or a digital meeting.

Well-being at work policy specifically related to telework

The new CBA No. 149 also contains a section on the policy for well-being at work. This section can be seen as a concise summary of the existing legal provisions (especially of CBA No. 85, the Code on the well-being of workers, and the Act on workable and agile work), but also contains some specific elements.

CBA No. 149 mainly imposes a number of information obligations on the company. The employer must inform its teleworkers of the preventive measures relating to the adaptation of the workstation, the proper use of screens and the technical and IT support available.

Furthermore, the employer must also provide the teleworkers with the names and contact details of the persons specified in the CBA who can provide support. The teleworkers can then contact them “in an appropriate manner”, e.g., by sending a photo (of the workstation) or via video conference. Where necessary, adjustments to the workstation can be proposed. More generally, the employer must also provide information about the modalities and specificities of telework to the hierarchy and the teleworkers themselves, for example, by organising training.

In addition to these information obligations, CBA No. 149 addresses the current psychosocial risks in these “corona times”. The employer must take appropriate measures to maintain the attachment of teleworkers to the company. A similar obligation was already provided for in CBA No. 85. What the current CBA No. 149 adds is that the company must pay special attention to “vulnerable teleworkers”, i.e., employees who, due to their personal, family and/or housing situation, for example, have to deal with additional tensions during telework. In this way, the employer – who is not obliged to do so – can, among other things, plan well-organised and limited return occasions while respecting the sanitary regulations. We note here that a meeting in physical presence is not possible at present.

Period of validity

As indicated above, CBA No. 149 provides only for a temporary regime and, in any case, it will expire on 31 December 2021. The advice of the NLC clarifies that this CBA can also expire earlier if the measure of compulsory or recommended telework by the government would end before 31 December 2021.

Action point

If your company has not yet developed a policy on (structural or occasional) teleworking, this CBA applies. In any case, it remains possible to draw up an instrument for an indeterminate period based on
CBA No. 85 on structural teleworking. Regarding welfare at work, the already existing obligations must be complied with, albeit with special attention to the (psychosocial) risks associated with teleworking in this pandemic.