"Position of trust": power of decision is not required

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Date:
07 Jun 2010

<p>Employees who are entrusted with a "leading position" or a "position of trust", are excluded from the regulations on working time, night work, rest, breaks and respect of timetables.</p>

Les travailleurs investis d’un poste de direction ou de confiance sont exclus de l'application des dispositions relatives à la durée du travail, aux temps de repos, aux pauses et au respect des horaires.

Employees who are entrusted with a “leading position” or a “position of trust”, are excluded from the regulations on working time, night work, rest, breaks and respect of timetables.

Plenty of ink has been spilled on the interpretation of the concepts “leading position” and “position of trust”. Indeed, the Royal decree of 10 February 1965 – which contains a list with an enumeration of the positions covered by this exception – is seriously out of date. Therefore, the courts often consider that this list can be interpreted in a wider context, and that it’s not absolutely necessary that the position the person actually holds is expressly mentioned in this list.

In a case about a security guard, the Labour Appeal Court of Brussels decided against this tendency, that a certain level of autonomous decision-making power is necessary and essential in a “position of trust”.

However, this judgment was overturned by the Supreme Court in a judgment of 29 March 2010.The Supreme Court decided that a person in a “position of trust” must not necessarily dispose of autonomous decision-making power. The simple fact that a security guard does not have this power is not sufficient to conclude that he is not in a “position of trust”.