Be Aware – November 2023

All organisations with at least 50 workers need to appoint a person of trust

Every employer needs to have a prevention advisor responsible for the psycho-social aspects of work. This can either be a member of the internal service for prevention and protection at work. Or it can be an employee from an external service for prevention and protection at work.

Besides the prevention advisor, an employer can also appoint a person of trust. This used to be optional.

The role of the person of trust is quite limited and purely informal. A worker thinking about filing a formal complaint alleging harassment at work can contact the person of trust for advice on the complaint procedure or for an informal conciliation attempt. But the person of trust can’t take over the formal complaint procedure. Only the prevention advisor responsible for the psychosocial aspects of wellbeing at work can take note of a complaint. The prevention advisor also examines the complaint and drafts the report on the complaint. The person of trust can at most help the prevention advisor, which can be especially useful if the prevention advisor is part of the external service for prevention and protection at work. The person of trust can then clarify the points that are specific for the organisation (eg the normal working method).

Despite the informal nature of the role, a formal procedure has to be followed to appoint someone as the person of trust. The committee for prevention and protection at work should unanimously approve the appointment of a person of trust. If no agreement can be reached and the employer insists on appointing the person involved, the social inspection will attempt to conciliate the dispute. If no conciliation can be reached, the social inspector will advise on the appointment of the person involved, although the employer is not obliged to follow this advice. If an employer does not follow the advice, the employer should provide the committee with the reasons for doing so.

If there’s no committee for prevention and protection at work, but there is a trade union delegation, the trade union delegation takes over this role.

If there’s also no trade union delegation, the workers themselves should be consulted on the appointment of a person of trust.

The person of trust cannot be the occupational health doctor, a trade union delegate, a staff representative in the works council or the committee for prevention and protection at work or a member of the management staff who can represent the employer in those bodies.

Similarly, the unanimous approval of the committee is required to revoke the capacity of person of trust.

There’s no specific protection against dismissal for the person of trust. An employer can unilaterally end the tenure as person of trust by terminating the employment contract of the person involved.

On 26 October 2023, the Belgian Parliament approved an Act making it mandatory for organisations with at least 50 workers to appoint a person of trust. Organisations with less than 50 workers are not obliged to appoint a person of trust, unless all members of the trade union delegation ask for one to be appointed. Organisations with at least 20 workers who use an external service for the role of prevention advisor specialised in the psychosocial aspects of work should also appoint a person of trust.

The procedure mentioned above should be followed for appointing this person of trust.

There are no changes to the duties of a person of trust.

An employer failing to appoint a person of trust can face a sanction of level 2, which is either a criminal fine of maximum EUR4,000 or an administrative fine of maximum EUR2,000 if the public prosecutor decides not to start a procedure before the criminal court.

The new legislation will enter into force on the first day of the month following the month in which the new legislation is published in the Official Journal (which did not yet take place at the moment this article was written).

 

Parliament approves new legislation on delivery activities

The working conditions of people conducting delivery activities is a common discussion in the Belgian Parliament.

Litigation is pending on the question of whether Deliveroo drivers are workers or self-employed. And there’s also a case pending where two managers of the Belgian subsidiary of PostNL have been temporary imprisoned.

The government planned to promulgate new legislation on delivery activities, and on 9 November 2023, the Belgian Parliament approved the Act holding various provisions in relation to the working conditions of deliverers of postal parcels.

The Act applies to all delivery activities of postal parcels (defined as all addressed packages with a weight of up to 31.5 kg) in Belgium. But there is an exception for self-delivery, ie a company delivering its own goods (for instance a driver employed by a shop and only delivering the products sold by that shop). The Act also applies if the delivery activities are only partially performed in Belgium, for instance an online shop selling products in Belgium from a logistics centre in the Netherlands.

The Act does not deal with whether people handling delivery activities are workers or self-employed. So it’s still possible to have recourse to self-employed contractors for delivery activities. But the obligations under the Act apply both to workers and self-employed people.

The basic rule under the new Act is that people handling delivery activities can work at most nine hours per day. As the time necessary for delivering a number of parcels can be difficult to estimate in advance, the Act allows working up to ten hours per day, although maximum two days per week. The number of hours per week spent on delivery activities should not exceed 56 hours. Per two-week period, the distribution time should not exceed 90 hours. These thresholds don’t apply if the delivery activities are performed using a vehicle that needs a tachograph, as the rules on the maximum number of hours driving are then applicable.

To ensure these limits are respected, it’s now mandatory to use a time registration system for all delivery activities covered by the Act. A Royal Decree should determine how the time registration system will work.

A second important change is that the Act introduces a minimum price that every company delivering parcels in Belgium should respect. This minimum price will be determined by Royal Decree. It will depend on the minimum wage applicable to blue-collar workers of the joint committee for transport activities, the transportation method (eg by bicycle, by car, by van) and the cost insurance. This minimum price applies both if the delivery activities are performed by workers and by self-employed subcontractors.

A third change is that a contractor can be held liable if a subcontractor violates the legislation on postal services or the essential requirements in relation to conditions of employment. This presumption of liability can be reversed if a contractor can establish not having been negligent in monitoring the work handled by the subcontractor.

The Act is unclear on how this should be construed. While the Parliamentary Works specify that it’s not the intention that a contractor should monitor subcontractors every day, they also add that a contractor should be careful that monitoring subcontractors to check they respect all their legal obligations does not amount to exercising the employer’s authority on those subcontractors. This will require a careful balancing exercise. Contractors should ensure there’s sufficient monitoring to combat subcontractor infringements. But they have to monitor in such a way that they don’t exercise the employer’s authority on the people involved.