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Headline Labour & Employment: Compliance with formalities on part-time work becomes even more important

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The new Programme Act has been published in the Belgian State Gazette of 6 April 2012. Said Act contains a.o a number of measures in order to combat social fraud. As part-time work was sometimes used to conceal undeclared work, this Programme Act also provides for measures to fight against the non-compliance with the formalities regarding part-time work. We seize this opportunity to recall to memory several obligations in case of part-time work.

An employer who employs a worker on a part-time basis (also in case of a salary split for example), must:

- announce the latter’s work schedule by keeping a copy of the part-time employment contract, or an excerpt thereof with the work schedules, at a place where the work rules can be consulted, and
- record all derogations from this work schedule in a document or make use of “suitable devices”, such as a time-register, allowing to control the derogations from the work schedule.

Up till now, non-compliance with both formalities has been sanctioned by two different types of legal ‘presumptions’, as laid down in article 171 of the Programme Act of 22 December 1989 and article 22ter of the Act on the National Social Security Office of 27 June 1969.

However, employers acting in bad faith could exploit a loophole in this legislation, when they had duly announced the work schedules, but not recorded the derogations as provided by law. The new Programme Act fills up this gap by enlarging the presumption of full-time employment, which already exists for the obligatory announcement of the work schedules, to the mandatory recording of the derogations from these schedules.

From now onwards, if an employer neither keeps a record of all work schedule deviations (nor uses “suitable devices”), and the social inspectorate catches an employee whilst working outside the working time announced in the work schedule, the concerned employee will be presumed to be a full-time worker. The employer has the possibility to rebut this presumption by proving that the concerned employee did work on a part-time basis. When the employer is unable to satisfy this burden of proof, he can be subject to the collection by the National Social Security Office of overdue social security contributions and additional contributions plus interest, calculated on the full-time remuneration.

On 19 April 2012, we organize a seminar about non-discrimination at the workplace (in French and Dutch). If you wish to register or want more information, please contact your attorney-at-law within our law firm or send an e-mail to seminar@liedekerke.com