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Employment law developments at the dawn of the New Year



SWT-RCC’: still possible as of 2019?

The system of unemployment benefits with a company allowance (‘SWT- RCC’) entitles older employees, whose employment has been terminated, to a company allowance in addition to their unemployment benefits, provided that certain age and seniority conditions are met.

In principle and besides some ‘derogative regimes’, in 2018, employees could call upon this system from the age of 62, provided that the employee had a career length of 40 years (for males) or 34 years (for females).

From 1 January 2019, the career length condition for female employees will in any case be increased to 35 years of service (instead of 34); this measure was already embedded in the ‘grow path’ for female employees which would gradually reach 40 years of service in the year 2024.

However, the government has now agreed upon an increase of the career length condition from 40 years to 41 years for male employees as of 1 January 2019 and for female employees in 2025.

Moreover, whilst in 2018, employees of companies in difficulty or restructuring companies could call upon the system of unemployment benefits with a company allowance from the age of 56 years old, it would now only be possible from the age of 59 years old as of the year 2019 and from the age of 60 years old as of the year 2020. In addition, restructuring companies that contemplate a collective lay-off would be obliged to include a commitment from the employer in their social plan to pay an amount of 3,600€ for the training cost of each employee terminated in view of ‘SWT-RCC’ and who will attend a training course to prepare for a so-called ‘bottleneck profession’ (‘knelpuntberoep - professions où les besoins sont considérables’).   

However it remains to be seen whether this ‘job deal’ agreement will finally be voted upon in Parliament given the uncertain political situation.


The CBA90 bonus: new documents needed?

Belgian legislation allows employers to grant employees a ‘non-recurrent result-linked bonus’ that benefits from a preferential tax regime, i.e. the so-called CBA 90 bonus. To be able to grant such a CBA 90 bonus, the employer must introduce a bonus plan, either through a separate CBA (if there is a trade union delegation within the company) or through an ‘act of accession’ (‘toetredingsakte – acte d’adhésion’) (if there is no trade union delegation).

The National Labour Council has now introduced new templates of this CBA and ‘act of accession’ that should increase flexibility and clarity. When introducing new bonus plans, it is mandatory to use these new templates.

Further, the threshold amount to be able to benefit from the beneficial tax treatment has been indexed. From 2019, no (withholding) taxes are due if the bonus does not exceed an amount of 2,941 € (i.e. 3,383 € - 13.07% employee social security contributions). Up to a maximum amount of 3,383€ per year, the employer pays a solidarity contribution of 33% on top of the bonus.


‘Private Supplementary Pension’: also for employees?

The option of a ‘Private Supplementary Pension’ (‘VAPZ – PCLI’) has existed for a long time for the self-employed. Now, it has also been introduced for employees.

An employee is entirely free as to whether or not to opt for such a system. If so, the employee must enter into a pension agreement in his/her own name with the pension institution of his/her choice. The employer must then deduct the pension contributions from the employee’s salary and transfer these amounts to the pension institution. There are no further administrative or financial obligations for the employer.

The amount of the pension contributions is to be determined by the employee. However, a maximum legal threshold (1,600€ per year or 3% of the annual gross salary, whichever is the highest) is set so that, in practice, only employees with no or a moderate occupational pension plan (group insurance) with their employer will be eligible to call upon the new system. 


The ‘Single (residence and work) Permit’: an improvement?

Up until now, to employ certain foreign employees (in general: non-EU citizens) in Belgium, the employer first needed to file a request for a work permit and the employee subsequently needed to request a residence permit through a separate procedure.

Both procedures have now been modified and replaced with a request for one single combined work- and residence permit to the extent that the request relates to employment of more than 90 days.

It should also be noted that a renewal request for existing single permits must be filed two months prior to the expiry date of the previous permit (whereas in the past, the renewal request for a work permit only needed to be filed one month before its expiry).

Moreover, the salary thresholds for obtaining a single permit are reduced for highly-skilled employees younger than 30 years and for nurses and the maximum employment term for highly-skilled employees and employees with a supervisory function is extended to 3 years.


‘Soft landing strip job’: the compensation to be paid by the employer

Older employees who would like to take it a bit more ‘easy’ towards the end of their career can, within the framework of a so-called 'soft landing strip job’ (‘zachte landingsbaan – employ de fin de carrière doux’), switch to a less stressful job (from the age of 58) or work fewer hours (from the age of 60) and can receive compensation from their employer, free of social security contributions, to compensate for the associated loss of salary. Until now, this compensation had to be determined in a collective bargaining agreement or through an amendment of the work regulations. As a result, the system was not very successful. This condition has now been dropped. Since 1 January 2019, an individual written agreement between employer and employee will be sufficient to determine this employer compensation.


Outplacement > 45 years: no longer obliged for everyone?

The so-called ‘specific’ outplacement regime applies to employees who are at least 45 years old and who are entitled to a notice period or indemnity in lieu of notice of less than 30 weeks. In principle, for these employees, the employer has to make a spontaneous outplacement offer. However, for employees that work less than half-time or that ‘no longer have to be available to the employment market’, the employer only has to make an outplacement offer upon the employee’s explicit request (as opposed to a spontaneous offer).

A recent ‘Act on various employment rules’ (which has been adopted in Parliament, but has not yet been published in the Belgian Official Gazette) now modifies the specific outplacement regime by no longer obliging employers to make an outplacement offer to employees that ‘no longer have to be available to the employment market’, even if the concerned employees make an explicit request.

However, the notion of "employee who must no longer be available to the employment market" has been given a stricter interpretation

Moreover, the Flemish government has laid down procedural rules for penalties in the context of the ‘special outplacement’. An employer with employees working in a business unit in the Flemish region who has not fulfilled its obligations regarding the offering of outplacement must pay a contribution to the Flemish Region amounting to 1,800 € in total (1,500 € plus 300 € administrative costs).


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