Labour deal 2022: Right to disconnect

One of the measures of the labour deal (Act of 3 October 2022 on various labour provisions) on working time is the introduction of a right to disconnect (Chapter 8). This is not a "right" in the sense of an enforceable subjective right or a fundamental right, but the main purpose of the measure is to make it practically possible to tighten the boundaries between work and private time. There has long been a ban on employees working outside working hours, but the fact that many workers remain connected or reachable even after hours via their laptops, computers, smartphones or other electronic tools does not make it easy to clearly demarcate work and private time from each other. As a first step, the legislator had already included in the Social Cohesion Act of 2018 an obligation for the employer to hold regular consultations within the health & safety committee on deconnection.  This rather weak elaboration of the right to disconnect (rather an obligation to consult) will now be removed and replaced by a new measure.

In particular, employers with at least 20 employees in the private sector will be required to lay down written arrangements regarding deconnection. This measure is clearly based on the French example.  These agreements must include the following minimum modalities:

• Practical modalities for the employee's application of his right to disconnect outside the hourly schedules;
• Guidelines on the use of digital tools, with a view to ensuring rest time, leave and the employee's private and family life.
• Providing education and sensitisation actions for employees and managers on the wise use of digital tools and risks in case of over-connection.

This shows that the employee does have a certain right to deconnect, but exactly how this will be expressed needs to be further elaborated. The explanatory memorandum does give some examples such as "guidelines not to answer e-mails or mobile calls, switching off servers outside working hours, activating absence messages and referral messages, the use of an automatic signature emphasising the non-emergency of an immediate response." 

The fact that the labour deal law defines these modalities in very broad terms ensures that there is still ample room for social dialogue within the company. After all, the agreements must be introduced via a company collective bargaining agreement. In the absence of such a collective bargaining agreement, it should be introduced in the internal work rules. Unfortunately, it is not clear exactly what is meant by "in the absence of a collective bargaining agreement". It makes sense that this would be the case within companies in which it is not possible to conclude a collective bargaining agreement because, e.g., there are no trade union delegates. But whether introduction via the internal work rules is a full alternative and the employer can therefore choose whether to do it via collective bargaining agreement or internal work rules (even if there is a union delegation) is not explicitly stipulated and the explanatory memorandum remains silent on this aspect. However, this silence seems to imply a free choice for the employer.

Companies will also be given a particularly short deadline. Before 1 January 2023, the company collective bargaining agreement must be submitted to the FPS Employment (General Directorate of Collective Labour Relations) or a copy of the amended internal work rules must be submitted to the social inspectorate. However, the Labour Deal Act also provides for a possibility for the National Labour Council or joint (sub)committees to conclude a collective bargaining agreement on the matter before 1 January 2023, which would prevent companies from having to take action themselves. It is unclear whether the social partners intend to do this within the NLC (the employers would be in favour, but the trade unions are currently hesitating to start negotiations) and whether they would finish this in time.

UPDATE: The FPS Employment has announced that the deadline of 1 January 2023 will be delayed with 3 months to 1 April 2023. In light of this, it is unlikely that the NLC will conclude a national CBA.

In any case, no sanction is stipulated for those employers who would not conclude a collective bargaining agreement in time or provide a regulation in the internal work rules.