Introduction of a right to request a form of employment with “more predictable and secure” working conditions (CBA No. 161)

At the instigation of the European Union, the National Labour Council adopted on 27 September 2022 Collective Bargaining Agreement No. 161 concerning the right to request a form of employment with more predictable and secure working conditions. This CBA provides a framework and protection for employees who wish to obtain more predictable and secure working conditions. This CBA came into force on 1 October 2022.

Scope of application

As of 1 October 2022, any private sector employee, employed under an employment contract, with at least six months’ seniority with the same employer and whose predetermined and actual working time averages more than 3 hours per week over a period of 4 consecutive weeks, now has the right to request from his or her employer a form of employment with more predictable and secure working conditions.

CBA No. 161 provides that for the calculation of seniority, all periods of employment with the same employer are counted together. In the case of a temporary worker, seniority refers to all periods of employment with the same user.  

More predictable and secure working conditions

CBA No. 161 does not define the “form of employment with more predictable and secure working conditions”. This is left to the discretion of the employee, depending on his or her needs. The CBA only gives some examples in comments, such as being bound by an open-ended contract rather than a fixed-term contract.

The right to request a form of employment with more predictable and secure working conditions is, however, subject to several conditions. It can only be requested if a form of employment with more predictable and secure working conditions is available, the employee meets the qualifications and skills required for it, and accepts the proposed working hours and wage conditions. However, these conditions can be implemented differently at sectoral, company or individual level (by mutual agreement between the employer and the employee).

Procedure

The employee must make a request in writing to the employer at least three months before the desired starting date of this form of employment (unless a shorter deadline is set at sectoral, company or individual level).

This request must mention:

• an express reference to CBA No. 161;
• an indication of the form of employment with more predictable and secure working conditions for which the employee wishes to be considered; and
• the desired starting date of this form of employment.

The request must be made:

• by registered letter; or
• in writing, with a copy signed by the employer as an acknowledgement of receipt; or
• by electronic means with an acknowledgement of receipt by the employer.

The employer must respond in writing to the request within one month (or two months for employers with fewer than 20 employees) from the date of the request.

The employer can respond in different ways: an agreement, a refusal, a postponement of the implementation of the new working conditions or a counterproposal. In the case of a refusal, postponement or counterproposal, the employer must motivate its response by indicating concrete and justifiable reasons for its decision, which must be related to the functioning of the company. When making a decision, the employer must “try” to take the employee’s needs into account as much as possible.

The employee cannot make a request more than once in a 12-month period, unless the employer has not responded to the request within the time limit (in which case the employee can repeat the request).

If the employer accepts the request or the employee accepts the employer’s postponement or counterproposal, the employee and the employer must agree on the concrete arrangements.

Protection of the employee

CBA No. 161 also introduces protection against adverse action being taken against an employee who submits a written application in application of the CBA. An employee who believes that he or she has been subjected to adverse treatment as a result of exercising his or her rights under the CBA must establish facts from which it can be presumed that this is the case. If this is the case, the employer has the burden of proof that the measures are based on grounds unrelated to the exercise of the employee’s rights under the CBA. In the event of an adverse measure in connection with the exercise of the employee’s rights under the CBA, the employee is entitled to compensation of 2 to 3 months’ salary.

CBA No. 161 expressly states that the non-renewal of a fixed-term contract for an employee who has submitted a written request under the CBA can be considered as an adverse action for which compensation is due. The employee will then have to prove that his employment contract was not renewed for reasons linked to the exercise of his or her rights arising from this CBA.

In addition, CBA No. 161 also introduces a separate protection against dismissal and measures preparatory to dismissal of an employee who has submitted a written request under the CBA. Dismissal of the employee remains permitted on grounds unrelated to the exercise of the employee’s rights under the CBA. An employee who believes that he or she has been dismissed because of the exercise of his or her rights under the CBA must establish that there are facts from which it can be presumed that this is the case. In this case, the employer must prove that the dismissal was based on reasons unrelated to the exercise of the employee’s rights under the CBA. In the event of dismissal in connection with the exercise of the employee’s rights under the CBA, the employee is entitled to compensation of 4 to 6 months’ salary.

In both cases, the duration of the protection starts from the written request of the employee and ends two months after:

• the refusal of the request by the employer; or
• the start of the employee’s exercise of the form of employment with more predictable and secure working conditions; or
• the start date requested by the employee when no such form of employment is started.

The protection also covers the period of postponement by the employer.

The indemnities provided for in CBA No. 161 cannot be cumulated with each other or with other indemnities due upon termination of the employment contract (with the exception of indemnity in lieu of notice, additional indemnity paid in addition to social security benefits, non-compete payments or compensations for loss of clientele).

At collective level

Both the employee and the employer can initiate a consultation within the competent body in the company on forms of employment with more predictable and secure working conditions.

Action point

Since 1 October 2022, you may receive a request from your employees to benefit from a form of employment with more predictable and secure working conditions. Make sure that you respond to this request in the required manner and within the required timeframe, particularly as this will soon be penalised (a law amending the Social Penal Code has yet to come into force). Also, if you are considering dismissing an employee or taking an “adverse action”, check whether he or she is protected under the new
CBA No. 161.