Collective employment relations

On 22 February 2022, Collective Bargaining Agreement No. 90/4 modifying Collective Bargaining Agreement No. 90 of 20 December 2007 on non-recurring result-based benefits (“CBA No. 90”) was signed by the social partners. This CBA No. 90/4 followed an advice of the NLC of the same day. After reading this advice of the NLC, numerous amendments to the system of non-recurring result-based benefits (or result-bonus) were expected. However, these have remained rather limited.

In April 2021, the Court of Auditors issued a report titled “Non-recurring result-based benefits - An incentive scheme for employee performance”. This report contained an analysis of the system as well as a number of recommendations addressed to the legislator, the FPS Employment, Labour and Social Dialogue, the FPS Finance, the NSSO and the NLC.

One of the recommendations was to amend CBA No. 90 to speed up the procedure and encourage its digitalisation. In response, the NLC was informed by the FPS ELSD of its administrative practice with regard to the stated objectives and, by way of example, the FPS ELSD indicated which objectives it considered inconsistent with CBA No. 90.

It is in this context that the NLC considered it desirable to examine these recommendations, as well as the question which objectives may or may not be in line with CBA No. 90.

First and foremost, the NLC emphasises in its advice of 22 February 2022 that

CBA No. 90 is perceived as good both by companies and by employees, and that CBA No. 90 also functions well generally and therefore does not require any adjustment. In that respect, the NLC is of the opinion, with regard to the aforementioned recommendations from the Court of Auditors, that there is no reason to adjust the content of CBA No. 90, with the exception of changes of a legislative nature.

However, the NLC confirms that it could be useful to remove the obligation to provide the comments register to the FPS ELSD when there are no comments. According to the NLC, this would constitute an administrative simplification.

Next, the NLC elaborates on the type of objectives it considers appropriate under CBA No. 90. In this regard

the NLC, after recalling the fundamental principles, confirms that the objective of CBA No. 90 is to increase the motivation and commitment of employees by involving them in the achievement of collective objectives. The collective objectives are set according to the needs and specificities of each company. Although we note that for some years now the FPS ELSD has become stricter in its stance on whether or not to accept the objectives set in business plans, the NLC stresses that the improvement of results is not measured exclusively by economic or financial measures and that the objectives therefore do not necessarily have to be of that nature.

In its advice, the NLC also establishes a list of objectives, ranked by theme (economic or financial, performance, welfare, social responsibility, ecology, mobility, etc.), which it believes are in line with
CBA No. 90. It is noteworthy that several objectives are mentioned in it, which the FPS ELSD no longer accepts today (e.g. following training courses, introducing new working methods, organizing events, taking actions with regards to digitalization, etc.).

Regarding the well-being-related objectives and the mobility objectives, the NLC proposes a concrete amendment to CBA No. 90. In particular, the NLC believes that the employer should no longer just declare on honour that a prevention plan exists in the company, but that the global prevention plan and the current annual action plan should also be attached to the CBA No. 90 plan.

Furthermore, the NLC is of the opinion that the mobility objectives should be part of the overall and broader vision of the company transport plans and that they should only be allowed when bicycle allowances are granted to employees who use bicycles for their work–home travel.

The vision regarding the well-being and mobility objectives was effectively the subject of the amendments made by CBA No. 90/4. The model forms (act of accession / company CBA) were also adapted, taking into account these new obligations.

Although CBA No. 90/4 does not explicitly exclude the other objectives listed by the NLC (performance, social responsibility, ecology, etc.), they are not mentioned in the amending CBA No. 90/4 either. For the time being, the FPS ELSD has already indicated that its (strict) positions taken in recent years on whether or not to accept the objectives set in the business plans will remain unchanged, despite the clear vision of the NLC. It remains to be seen whether the FPS ELSD will maintain this vision in the future.

At the time of drafting this Newsflash, the Law of 21 December 2007 on the implementation of the Interprofessional Agreement 2007-2008 has not yet been amended. It is to be expected that the obligation to deliver the comments register to the FPS ELSD in the absence of comments will be removed herein.

Action point

When drawing up a plan to award a result-bonus in accordance with CBA No. 90, the employer must ensure that the applicable legal provisions on the subject are strictly complied with. This means that the content must be in line with CBA No. 90, (choosing fitting objectives) but also the form into which the plan is cast (use of new model forms with all the mandatory statements) and that the prescribed procedure must be followed).