Night work in e-commerce companies in 2020: nothing new under the sun?

Introduction
Night work principles
Easing of procedure for introducing night work schemes
Impact on night work schemes introduced during the 2018 and 2019 transition period
Companies that have not used temporary measures but would like to introduce night work in 2020
Summary

Introduction

With e-commerce growing at an unprecedented rate across the globe, in the past few years the Belgian legislature has taken several measures – both temporary and permanent – to make Belgium a more attractive hub for e-commerce activities. Among other things, such measures were meant to facilitate the introduction of night work schemes within companies. Some of these measures ended on 31 December 2019. What does this situation mean for companies and the night work schemes introduced in 2018 and 2019?

Night work principles

In principle, night work (ie, work performed between 8:00pm and 6:00am) is forbidden. However, there are a number of exceptions to this principle. In 2017 an exception was introduced for all activities relating to e-commerce.

However, even though night work was in theory possible after 2017, companies with a trade union delegation had to conclude a collective bargaining agreement (CBA) with all of the trade union organisations represented in the trade union delegation in order to introduce a scheme involving night work between midnight and 5:00am. Companies without a trade union delegation just had to follow the procedure to amend the works rules. Through this exception, companies could introduce night work between 8:00pm and midnight and work starting from 5:00am by a simple amendment to the work rules (through the proper procedure), regardless of whether they have a trade union delegation.

Employers must consult with employees (or their representatives) on any adjustments to be made to the working conditions by the introduction of night work between midnight and 5:00am.

In the e-commerce sector, it was clear that in most cases no agreement could be reached between the trade unions and the management (especially because the agreement of all of the trade union organisations was required), with the unions often imposing unrealistic financial requirements as a condition for their agreement.

Easing of procedure for introducing night work schemes

Therefore, the legislature introduced two measures in the e-commerce sector to facilitate the introduction of night work.

The first measure was definitive and concerns all aspects of e-commerce (ie, of both goods and services). According to this new provision, companies with a trade union delegation can introduce night work between midnight and 5:00am by means of an 'ordinary' CBA (ie, an agreement signed with a single trade union organisation (as opposed to the previous requirement of signing the CBA with all trade union organisations represented in the trade union delegation)). The CBA automatically amends the work rules (and the employment contracts).

The second measure was temporary, running from 1 January 2018 until 31 December 2019, and was limited to companies involved in the e-commerce of movable goods (thus excluding the e-commerce of services). Under this temporary measure:

• companies without a trade union delegation could introduce night work between midnight and 5:00am by concluding a CBA with a single trade union organisation (on top of the existing possibility of introducing such a scheme by modifying the work rules);
• companies with a trade union delegation had the option of simply modifying the work rules to introduce night work between midnight and 5:00am (on top of the existing possibility of introducing such a scheme by concluding a CBA with a single trade union organisation); and
• companies, regardless of whether they had a trade union delegation, could introduce work between 8:00pm and midnight and work starting from 5:00am by concluding a CBA with a single trade union organisation (on top of the existing possibility of introducing such a scheme by modifying the work rules).

Thus, all companies active in the e-commerce of movable goods, regardless of whether they had a trade union delegation, could during the transition period chose to introduce any type of night work by either concluding a CBA with a single trade union organisation or amending their works rules.

Under the transition period, the CBA automatically amended the work rules (and the employment contracts) and the consultation procedure still applied in full.

This transition period ended on 31 December 2019.

Impact on night work schemes introduced during the 2018 and 2019 transition period

Night work schemes introduced in 2018 and 2019 under the transition measures must have ended by 1 January 2020. If companies would like to maintain the scheme, they must conclude a new CBA with a least one trade union organisation in which the parties agree to extend the scheme. This new CBA will automatically amend the works rules (and the employment contracts).

E-commerce companies with no trade union delegation can also reintroduce night work by simply modifying their work rules. However, they must obtain employees' consent if such a new scheme entails a change to their working regimes (eg, from day shifts to night shifts or a mixture of both).

If companies have introduced night work without making use of the transition measures, they need not take any measures.

Companies that have not used temporary measures but would like to introduce night work in 2020

Since 1 January 2020, employers can no longer use the transition measures. Therefore, employers with a trade union delegation must conclude a CBA with at least one trade union organisation in order to introduce night work between midnight and 5:00am. Employers can no longer introduce night work between midnight and 5:00am by merely modifying the work rules.

However, employers with no trade union delegation can now only introduce night work between midnight and 5:00am by modifying the work rules. If this reduces the administrative burden and contact with the permanent representatives of one of the recognised trade unions, modifying the work rules does not automatically modify individual employment contracts. Therefore, companies must obtain each employee's individual consent regarding a change to their (day) working schedules to night work schedules (or a mix of both).

From 1 January 2020, work between 8:00pm and 12:00am and work from 5:00am can be introduced by companies only by adapting the work rules – no CBA can be concluded in this respect.

Summary

The changes can be summarised as follows:

For further information on this topic please contact Astrid Caporali at ALTIUS by telephone (+32 2 426 1414) or email (astrid.caporali@altius.com). The ALTIUS website can be accessed at www.altius.com.