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

by Astrid Caporali, Associate, ALTIUS

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

A brief reminder about the principles of night work

In principle, night work, i.e. work performed between 8:00 p.m. and 6:00 a.m., is forbidden. There are, however, a number of exceptions to this principle. In 2017, an exception was introduced for all activities relating to e-commerce.

As of that moment, night work was in theory possible. However, the introduction of a scheme involving night work between midnight and 5:00 a.m. still required that companies with a trade union delegation conclude a collective bargaining agreement (“CBA”) with all the trade union organizations represented in the delegation. For undertakings without a trade union delegation, following the procedure to amend the work rules was sufficient. Finally, night work between 8:00 p.m. and midnight as well as work starting from 5:00 a.m. could be introduced within the company by a simple amendment to the work rules, regardless of whether or not the company had a trade union delegation.

Moreover, any procedure for the introduction of night work between midnight and 5:00 a.m. must always be preceded by consultation with the (representatives of the) employees on any adjustments to be made to the working conditions.

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

Easing of the procedure for introducing a night work scheme

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

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

The second measure was temporary, running from January 1, 2018 to December 31, 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, 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 either by concluding a CBA with a single trade union organization or by amending their work rules.

The CBA automatically amended the work rules (and the employment contracts). The consultation procedure still applied in full.

As mentioned, this transition period came to an end on December 31, 2019.

What does this mean for the night work schemes companies introduced during the 2018-2019 transition period?

Night work schemes introduced in 2018-2019 via the transition measures must in principle have ended by January 1, 2020. If companies would like to maintain the scheme, then they must conclude a new CBA with a least one trade union organization in which the parties agree to extend the scheme.

Therefore, it is necessary to conclude a (new) CBA that will automatically amend the work rules (and the employment contracts).

E-commerce companies without a trade union delegation can also reintroduce night work via a simple modification of their work rules. However, it will in principle be necessary to obtain the employees’ consent if such a new scheme entails a change to their working regimes (from day shifts to night shifts or a mix of both).

Companies that introduced night work without making use of the transition measures do not need to take any measures.

What if a company has not made use of the temporary measures and would like to introduce night work in 2020?

Since January 1, 2020, employers can no longer use the transition measures. In other words, employers with a trade union delegation are required to conclude a CBA with a least one trade union organization in order to introduce night work between midnight and 5:00 a.m. It is no longer possible for them to introduce night work by merely modifying the work rules.

On the other hand, employers without any trade union delegation can as from now only introduce night work between midnight and 5:00 a.m. by modifying the work rules. If this has the advantage of lowering the administrative burden and contacts with the permanent representatives of one of the recognized trade unions, modifying the work rules does not entail an automatic modification of the individual employment contracts. This means that companies will in principle have to obtain each employee’s individual consent regarding a change to their (day) working schedules to night work schedules (or a mix of both).

Finally, as of January 1, 2020, work between 8:00 p.m. and 12:00 a.m. and work as from 5:00 a.m. can only be introduced within the company by adapting the work rules. No CBA can be concluded in this respect.

Summary

 

About the author

Tom Declercq

Specializing in both individual and collective employment law, Astrid assists Belgian and international clients with a wide variety of labor law issues, such as recruitment and dismissal, employee well-being, compensation and benefits, company policies, transfer of undertakings, working time, employee representation, etc.

Astrid also assists clients with complex litigation matters concerning employment law issues before the Belgian Employment Courts and Employment Appeal Courts.

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