New National Labour Council collective labour agreement sets framework for COVID-19 teleworking

Introduction
Which employers are affected by the new CLA?
Employment conditions of COVID-19 teleworkers
COVID-19 teleworkers' wellbeing at work
For how long will CLA Number 149 apply?

Introduction

Traditionally, Belgian labour law has distinguished between two forms of telework:

• structural telework, which is regulated by Collective Labour Agreement (CLA) Number 85; and
• occasional telework, which is regulated by the Act on Workable and Agile Work.

Due to the COVID-19 pandemic, a third category has been added: COVID-19 telework, which was previously recommended but has now been made compulsory again by the government. Until recently, this COVID-19 telework category was a sui generis regime for which no legal framework had been developed. However, the National Labour Council has now concluded CLA Number 149, which creates such a legal framework.

The new CLA Number 149 does not apply to companies that already had a structural or occasional telework regime in place before 1 January 2021 that was included in a CLA, an individual agreement or a telework policy.

For companies that have no structural or occasional telework regime already in place, CLA Number 149 includes a reference framework so that they can make the necessary arrangements on COVID-19 telework and several obligations with regard to teleworking employees' wellbeing.

This article provides an overview of the new CLA's key points.

Which employers are affected by the new CLA?

The new CLA's provisions apply only to companies that had no structural or occasional telework regime in place on 1 January 2021.

CLA Number 149 specifies that it does not apply to existing agreements concluded before 1 January 2021, including a CLA, an individual agreement or a telework policy that was implemented with due regard for the rules on social dialogue.

Thus, the new rules do not apply to employers which already have:

• a CLA or an individual agreement on structural or occasional telework in place; or
• a telework policy drawn up in consultation with employee representatives within the company's bodies.

Therefore, such employers need not do anything.

However, what about companies that have no consultative bodies and have communicated a policy for structural or occasional telework to their employees by email? Are they also excluded from the new rules? Arguably, they are; however, CLA Number 149 is unclear on this point.

Further, what about employers which have no regime for structural or occasional telework in place, but which have formalised a sui generis COVID-19 telework regime in an agreement with their employees before 1 January 2021?

Based on a literal reading of CLA Number 149, which refers only to existing regimes on structural and occasional telework, such employers would fall under the new regulation. It can be questioned whether this was the social partners' intention, given that they want to encourage employers which have no formal telework policy to make the necessary arrangements. Until more clarity is provided on this point, employers with a COVID-19 telework regime in place are advised to comply with the new CLA's provisions.

Employment conditions of COVID-19 teleworkers

What arrangements can or must be made?
In principle, the 'normal' working conditions apply to teleworkers as they do in the workplace.

However, CLA Number 149 provides that employers can work out several additional, specific working conditions for COVID-19 teleworkers and make arrangements about this with the teleworkers. For the provision of equipment and additional connection costs, arrangements must be made.

Employers can make arrangements with regard to:

• any additional or different terms and conditions of employment as compared with the situation where employees work at the workplace;
• rules for monitoring the results to be achieved or evaluation criteria. When employees are teleworking, employers have the right to monitor work performance, but this cannot be 'continuous' monitoring. In doing so, employers must respect employees' privacy. Moreover, CLA Number 149 explicitly stipulates that the same workload and performance standards apply to teleworkers as those that apply to workers at the workplace;
• any specific working time schedules for telework. Teleworkers are free to organise their own work within the framework of the working hours applicable in the company. Specific working time schedules for telework may be agreed on. If this does not happen, teleworkers work on the basis of their 'normal' working time schedule; and
• periods during which employees must be reachable or can be unavailable. To reconcile telework and private life, agreements can be made regarding the periods during which teleworkers must be reachable and periods during which they may be unavailable. The means by which teleworkers can be reached can also be specified (eg, by phone, email, Microsoft Teams or Skype).

Employers must make arrangements with regard to:

• the provision of necessary equipment (eg, a laptop) and technical support or, if employees use their own equipment, the reimbursement of the costs; and
• additional connection costs (eg, telephone and Internet).

Contrary to what CLA Number 85 states for structural telework, which explicitly states that employers must reimburse the professional costs of the connections and communication relating to telework, CLA Number 149 on COVID-19 telework states only that 'arrangements' must be made in this regard. In theory, it seems that parties could agree that no such reimbursement is to be paid.

Moreover, CLA Number 149 states that when determining employers' obligations, any additional compensation already paid by employers to teleworkers in the context of the COVID-19 crisis may be considered in this respect.

However, it cannot be excluded that employees could still claim a reimbursement of additional communication costs on the basis of employers' general obligation to provide the tools and materials necessary for the execution of work (Article 20 of the Employment Contracts Act). This was previously interpreted by the Employment Ministry on its website as an obligation for employers to provide the necessary equipment and to reimburse the communication costs of COVID-19 teleworkers, albeit with reference 'by analogy' to CLA Number 85 on structural telework. However, the specific CLA on COVID-19 telework includes no such specific obligation.

What must employers specifically do?
CLA Number 149 states that employers must inform their teleworking employees of:

• any additional or different working conditions relating to the COVID-19 telework;
• the way in which the employer monitors the results or the performance of the telework; and
• the rules that employees must respect to guarantee data security, particularly the restrictions and penalties regarding the use of IT equipment and tools.

Employers must formalise the arrangements made relating to COVID-19 teleworkers' working conditions by:

• concluding a company CLA;
• amending the work rules;
• entering into an individual agreement; or
• drafting a telework policy with due regard for the social dialogue principles.

Employers must also explicitly communicate these arrangements to employees (eg, via the intranet, an email or a digital meeting).

Employers with consultative bodies should also provide workers' representatives with the necessary time and resources to communicate with COVID-19 teleworkers. In particular, they should be provided with digital tools (eg, digital notice boards) to do so.

COVID-19 teleworkers' wellbeing at work

CLA Number 149 also sets out employers' obligations concerning wellbeing at work in the framework of COVID-19 telework.

The CLA provides for several concrete prevention measures and an information obligation for employers.

Prevention measures
Employers must:

• implement a policy on wellbeing at work for telework that must be established with due regard for social dialogue within the health and safety committee (or, in its absence, the trade union delegation or, in its absence, with the employees). This policy must be based on a multidisciplinary risk analysis that also considers the psychosocial dimension and the specific health aspects relating to telework; and
• take appropriate measures to maintain the connection between employees and the company (eg, COVID-19-proof organised return moments).

Information to be provided by employers
Employers must provide COVID-19 teleworkers with:

• the employer's prevention policy concerning telework, which may relate to adjustments to the workplace, the proper use of display screens and available technical and IT support;
• the possibility of informal or formal psychosocial intervention and spontaneous consultation with the occupational doctor;
• the contact details of the immediate superior, the competent prevention adviser (safety at work, occupational medicine and psychosocial risks at work) and any confidential counsellor; and
• information on the modalities and specificities of telework and any supplementary training, if applicable.

For how long will CLA Number 149 apply?

CLA Number 149 has been concluded for a fixed term and will expire on 31 December 2021.

If the government-imposed or government-recommended obligation to telework during the COVID-19 pandemic is lifted before 31 December 2021, CLA Number 149 will cease to have effect at that time.

For further information on this topic please contact Phillipe De Wulf or Esther Soetens at ALTIUS by telephone (+32 2 426 1414) or email (philippe.dewulf@altius.com or esther.soetens@altius.com). The ALTIUS website can be accessed at www.altius.com.