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Global Compliance Desk – Belgium

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Belgium: Mandatory Time Monitoring for Employers Using Floating Work Schedules      

The European Directive (No. 2003/88/EC) and the Charter of Fundamental Rights of the European Union (2000/C 364/01) mandates employers to establish an objective, reliable, and accessible system to record employee working hours. This requirement has sparked significant legal developments in Europe, particularly in Belgium.

In a 2020 ruling (AR 2018/AB/424), the Brussels Labour Court emphasized the importance of time monitoring systems. An employee claimed overtime after dismissal, but the employer’s lack of time records made it difficult to disprove the claim. The court ruled that without a time registration system, the employer bears the burden of proof, aligning with European law that mandates the recording of working hours.        

Currently, Belgian labor law does not impose a mandatory requirement for employers to implement a time monitoring system. 

Mandatory Time Monitoring for Employers Using Floating Work Schedules

A flexible work schedule ( floating work schedule) allows employees to choose their start, end times, and breaks, within set core hours when they must be present. These schedules are established through collective agreements or workplace regulations, which must specify core hours, flexible hours, and the reference period for averaging weekly hours. Employees can work up to 9 hours a day and 45 hours a week but must average out to normal weekly hours over a reference period. Overtime pay is only required if work exceeds these limits at the employer’s request.

The Belgian Social Criminal Code was significantly reformed by the Act of May 15, 2024 (“Act”), which came into effect on July 1, 2024. A notable aspect of this reform is the introduction of Article 146, which imposes penalties on employers who do not implement and use a time monitoring system for employees with flexible work schedules.      

Under the New Provision:

  • Employers are required to establish a system that accurately records and retains working time data for the current reference period [The reference period is now standardized to one year. This means the average weekly working time must be 38 hours unless a collective labor agreement stipulates a shorter weekly working time].
  • This system must be accessible to employees.
  • Employers must retain the recorded data for 5 years.
  • Employees must have the ability to verify the precise number of hours worked compared to their average weekly duration.                             

Consequences of Non-Compliance

Non-compliance with the time monitoring requirements can lead to penalties, though the sanctions are relatively modest. Potential penalties include:

  • Criminal fines ranging from €400 to €4,000, multiplied by the number of affected employees (up to a maximum of 100).  
  • Administrative fines ranging from €200 to €2,000, also multiplied by the number of affected employees (up to a maximum of 100).                                          

 

Take Away: Employers in Belgium should ensure to implement a time monitoring system to comply with new legal requirements as it will help avoid penalties and fulfill obligations under both European and national law.

Disclaimer: The material provided above is for informational purposes only and is subject to change. We endeavor to keep all material up-to-date and correct but make no representations about the information's completeness, accuracy, or reliability. Laws vary by jurisdiction and are subject to change and interpretation based on individual factors that may differ between organizations. The material is not meant to constitute legal advice and we suggest you seek the advice of legal counsel in connection with any of the information presented.
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