Be Aware – January 2024
New rules on sick leave during holiday leave from 1 January 2024
According to both Council Directive 93/104/EC of 23 November 1993 and the Belgian Act of 28 June 1971, full-time employees are entitled to four weeks’ holiday leave per year. European Court of Justice case law says that statutory holiday leave is an important principle of European social law. And it shouldn’t be made subject to conditions that mean employees don’t have time to rest.
If an employee is ill during their holiday, the Royal Decree of 30 March 1967 stipulates that the period of holiday leave is cancelled and can be used at a later time.
But in its judgement of 21 June 2012, the European Court of Justice held that the Working Time Directive prohibits a national legislation that doesn’t entitle an employee to take up holiday leave at a later time if the employee becomes unfit for work during annual holiday leave.
To address this contradiction between Belgian and European law, on 17 July 2023 the Belgian Parliament approved an Act making it possible to postpone leave if an employee falls ill during their holiday. This new Act entered into force on 1 January 2024.
Like for any period of sick leave, an employee should immediately inform their employer if they become ill during holiday leave. The law doesn’t specify how this should be done, so employees should follow any rules set out in the work regulations. The employee should always provide the employer with a medical certificate, even for the first three cases of sick leave per year that last only one day. Usually employees don’t have to submit a medical certificate for those periods of sick leave if they fall outside a period of holiday leave. The medical certificate should include the employee’s identification, doctor’s details, the expected duration of the sick leave, and whether the employee can travel for a medical examination.
In normal circumstances, employees should send the medical certificate within two working days, unless the work regulations stipulate otherwise. For sick leave during a period of holiday leave, the medical certificate should be sent “immediately,” but the Act doesn’t provide any further detail. The Act does add that in cases of force majeure, the medical certificate should be sent within a reasonable period.
A Royal Decree of 22 December 2023 includes the medical certificate form for sick leave during holiday leave, but its use isn’t mandatory. The form is in line with medical certificates typically issued by doctors in Belgium.
Doctors in Belgium will typically identify the worker using their national register number. But the form recommends that the doctor copies the number from the employee’s identity card. Also, doctors in Belgium can easily be identified by their social security number, which won’t be the case for doctors outside Belgium. The form states the doctor issuing the certificate should identify themself, but it doesn’t say how this should be done.
If the employee informs the employer and provides a medical certificate, they will be entitled to sick pay for the usual annual period (for most employees this is 30 days).
The new legislation does not include any specific provision on the employer’s right to instruct a controlling doctor to check whether or not the employee is genuinely unable to work. So this right also applies during periods of sick leave during planned holiday leave, though it will be difficult to organise a medical examination if the employee is abroad.
The form points out that if an employee falls ill during a period of holiday leave, they should reschedule the holiday leave using the normal process for booking holiday leave. There is no rule stating that the initially planned period of holiday leave is automatically extended by the days of sick leave.
Specific rules on commission fees for sales representatives
On 13 November 2023, the Employment Tribunal of Liège made a decision that offers a good summary of the rules on commission fees for sales representatives. A sales representative contested their dismissal, but they also challenged several claims in relation to commission fees, even though there’d been no discussion on the commission fees during the employment relationship.
A worker only qualifies as a sales representative if their main task consists of physically travelling to attend meetings with existing or potential clients to negotiate or sign business contracts. The travelling is a key requirement, so a worker who is office based or works from home and sends offers to clients by email is not a sales representative. Another condition is that the sales representative should visit their employer’s clients.
There’s no statutory definition of “commission fees” but it’s generally held that only variable remuneration calculated on the basis of the turnover achieved by the sales representative personally amounts to commission fees. Forms of variable remuneration dependant on other criteria (eg profitability, results of the company or of a particular team) are generally not considered commission fees, so they’re not subject to the strict conditions for commission fees.
If a sales representative is paid commission fees, the main rule is that fees are due on all orders accepted by the employer. An order is deemed to be accepted if the employer doesn’t object to the order within an agreed timeframe (typically one month). If an order is rejected, no commission fees are due, regardless of the reason for the rejection.
Commission plans issued at international level are often contrary to the Belgian legal rules on commission fees. This means sales representatives can often claim arrears for commission fees.
Many commission plans stipulate that no commission is due on turnover below a certain minimum threshold, contrary to the 1978 Act on Employment Contracts. But parties can agree that the fixed remuneration includes commission fees on the turnover up to a certain threshold, as the parties are free to negotiate the percentage of the commission fees.
Many commission plans also stipulate that no commission is due on the turnover beyond a certain maximum turnover. This is also contrary to the requirement that commissions are granted on all accepted orders. The employment contract can at most stipulate a very low percentage of commission fees on orders exceeding a certain threshold.
In the judgement of 13 November 2023, the Employment Tribunal repeated that the requirement to grant commission fees on all accepted orders implies an employer cannot make granting commissions subject to the condition the client pays for the order, even though many commission schemes include this rule. Article 105 of the 1978 Act on Employment Contracts is clear that a clause whereby the sales representative can be held liable if the client doesn’t pay is only possible if the clause is in writing and if the liability of the sales representative is limited to the commission on the order involved, unless in cases of gross negligence or the sales representative acting on purpose. In this case, the Employment Tribunal granted arrears of commission fees for the orders that were accepted but later cancelled because the client didn’t pay.
The Employment Tribunal also discussed the rule for deliveries spread in time included in article 94 of the 1978 Act on Employment Contracts. In line with a Supreme Court judgement 4 June 1970, the Employment Tribunal said this rule applies if the employer and client agreed on the details of the order but not the precise quantity. This involves a framework agreement whereby the client regularly sends orders for a certain period (eg weekly or monthly). For orders for deliveries spread over time, the 1978 Act on Employment Contract stipulates that the sales representative is entitled to commission on all orders for six months following the employment contract. A sales representative who takes over the client of the terminated sales representative is not entitled to commission on those orders.
