Be Aware March 2022

NLC updates – What's new in the area of non-recurring bonuses?

Since the adoption of CBA No. 90 of 20 December 2007, companies can set up a non-recurring bonus system linked to results. This bonus is tax exempt up to a maximum amount of EUR3,094 net in 2022 per calendar year and per employee.

A number of conditions must be met to use this type of tax-efficient bonus.

In addition to compliance with a specific procedure:

• the benefits must be linked to the collective results of the company or of a group of companies or of a defined group of employees (and therefore not individual); and
• these benefits must be dependent on the achievement of objective, measurable, transparent, definable/measurable, verifiable, and uncertain criteria at the time the system is installed.

This system has been evaluated on several occasions, resulting in amendments to CBA No. 90. What changes do CBA No. 90/4 and National Labour Council (NLC) opinion No. 2.275 of 22 February 2022, bring about, following the latest evaluations?

The NLC proposes possible objectives

After recalling that CBA No. 90 aims to increase the motivation and involvement of workers by involving them in the achievement of collective objectives, the CBA emphasizes that these objectives are not achieved solely through financial or economic objectives. In its opinion No. 2.275, the NLC proposes an exemplary list of possible types of objectives, together with concrete examples. The objectives may be:

• economic and financial;
• aimed at improving collective performance and the company's image (eg by participating in/giving free or paid training courses, improving the company's visibility especially in the media, improving order and cleanliness in the company);
• related to wellbeing at work and safety (eg by participating in stress management workshops);
• linked to corporate social responsibility, environmental protection/ecology (eg by participating in actions on inclusive hospitality in the company, by reducing waste production and increasing recycling, by reducing the use of consumables (eg ink, paper);
• linked to mobility (eg promoting soft mobility, encouraging workers to use the mobility budget, encouraging shared mobility between workers);
• linked to other social challenges (eg obtaining environmental or corporate social responsibility certificates).

Concerning the objectives related to wellbeing at work: from now on, companies will have to prove compliance with the provisions on wellbeing and file a global prevention plan and an annual action plan in force within the company with the registry of the Directorate General for Collective Labour Relations of the FPS Employment, Labour, and Social Dialogue (when filing the CBA or the act of accession introducing a non-recurring bonus system).

Mobility objectives will in future only be allowed if bicycle allowances are granted to employees who commute to work by bicycle.

An employer who wants to implement a non-recurring bonus system must use the template/standard collective bargaining agreement and the template/standard deed of accession available on the FPS Employment, Labour and Social Dialogue website. New templates will apply.

NLC further clarifies the collective objectives allowed under CBA No. 90.

Frédérique Gillet

The employer's duty to take appropriate measures for individuals with disabilities

In compliance with Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, an employer is obliged to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training.

What does this concept of "reasonable accommodation" cover?

In its judgment of 10 February 2022, the Court of Justice of the European Union clarified this concept, following a preliminary question submitted by the Belgian Council of State.

According to the Court of Justice, the appropriate measures to be taken in the context of reasonable accommodation generally cover, for example, an adjustment to the premises or an adaptation of the equipment, an adjustment to working time and the distribution of tasks or the provision of training or integration resources.

What are the obligations in this respect when, upon the occurrence of a disability, an employee becomes incapable of performing the work for which they were hired? According to the Court, reassignment to another job is likely to constitute an appropriate measure in the context of "reasonable accommodation." As a matter of fact, the purpose of such a measure is to eliminate barriers to the participation of people with disabilities in working life.

That being said, the Directive also expressly provides that the employer may not be required to take measures that impose a disproportionate burden on them. According to the Court of Justice, to examine whether the measures in question give rise to a disproportionate burden, the following elements must be taken into account:

• the financial costs involved
• the size of the company
• the financial resources of the company
• the possibility of obtaining public funding

In addition, the Court of Justice requires that there is at least one vacant position and that the employee concerned is likely to fill it.

The employer's duty to take appropriate measures for individuals with disabilities, however, cannot impose a disproportionate burden on the employer.

Frédérique Gillet

DLA Piper Employment publications of recent months

• Ancienneté et primes: attention aux discriminations! – In Trends Tendance, - Frederic Brasseur and Laurent De Surgeloose
• Wachtdiensten: het Hof van Justitie verduidelijkt het begrip arbeidstijd – In HR Magazine, - Frederic Brasseur