Flexible working arrangement: collective labour agreement No 162 applicable
Flexible working arrangement: collective labour agreement No 162 applicable
January 2023 – At the end of September 2022, a collective bargaining agreement (CBA) was signed within the National Labour Council that gives employees the right to apply for flexible working arrangements. The scheme has been in force since 1 October 2022.
Types
The collective agreement entitles employees to request one of the following forms of flexible working arrangements:
remote working (teleworking);
an adjustment of the work schedule; or
a reduction in working hours.
If the employer does not provide (or does not yet provide) any flexible working arrangement, a social consultation procedure must be initiated so that the employer and employees can reach a solution together. An industry-wide arrangement is also possible, but it should not prejudice the agreements at the company level.
Which employers and employees?
CLA 162 applies to all employees and employers covered by the scope of the Act of 5 December 1968 on collective bargaining agreements and joint committees. It is supplementary only to other employers.
Conditions
The employee concerned must have at least six months of seniority in the company.
In addition, he must also give a reason why he wants a flexible arrangement. That reason could be:
caring for a child. Are meant:
the birth of a child until the child turns 12 (21 in the case of a disabled child);
the adoption of a child until the child reaches the age of 12;
guardianship of a child within the meaning of Article 389 of the Civil Code, until the child reaches 12 years of age;
long-term foster care, until the child reaches 12 years of age; or
the care of a well-defined family member or relative in need of substantial care or support for a serious medical reason, provided that:
they are family members domiciled at the employee's place of residence; or family members who are a blood relative to the second degree, relative to the first degree, or relative to the first degree of the employee's partner; and
a doctor has judged that there is a serious medical reason.
Procedure
The employee must submit his request for a more flexible working arrangement at least 3 months in advance. The request must be made in writing (preferably by registered mail) or at least with an acknowledgement of receipt.
The flexible arrangement is valid for 12 months. The employee is entitled to several of these regimes during his career (and each regime is limited to a duration of 12 months in each case).
Both deadlines (3 months for the application, 12 months for the scheme) can be waived, but this possibility must then be provided for at sectoral or company level.
The employer must assess the application and, as far as possible, it must accommodate the employee's wishes. The employer has a period of one month to respond to the application. If the employer does not reply in time, the employee has the right ... to resubmit the application!
If the employer accepts the application without question, he must let it be known, but that's about it. If he refuses, he must give reasons for the refusal.
The employer can also propose a postponement or some other arrangement.
In all cases, the motivation must balance the interests of the company and the employee.
An early return to the previous working regime is not so obvious. This, too, must be requested in writing with reasons, after which the employer has 14 days to reply.
Protection
Perhaps most importantly, if an employee has requested a flexible working arrangement, the employer may not take any adverse action in relation to that employee (such as dismissal) unless the adverse action is taken for a reason other than the request for a flexible working arrangement.
The protection starts from the date of submission of the written application and it ends 2 months after the end date of the flexible work arrangement or 2 months after the date of refusal of the application by the employer.
Disputes about the arrangement (i.e. about a refusal of application or about the non-granting of protection) can be settled by the labour court.