Businesses regularly send IT consultants to work on their clients’ sites for fixed-term periods (usually around 6 months), in order to carry out projects (intense activity periods). At the end of this task, the IT consultant often comes back for a few months “on the bench” within their employer’s premises to receive training, participate in meetings, etc. (low activity periods) before starting a new task on the premises of another one of the business’s clients.
The problem: accumulation of compensatory rest periods during low activity periods
Generally speaking, working hours have to be agreed upon individually, with the worker. Furthermore, under Belgian law, all of the working regimes that apply within the business need to be recorded in the company’s internal work regulations. This raises the question: what working hours need to be agreed upon with these IT consultants, who alternate between intense activity periods and low activity periods?
During intense activity periods, while working on client premises, IT consultants often carry out 40 hours of work per week, in line with the client’s working hours. Clients include banks and insurance companies. To compensate for this, IT consultants are entitled to a statutory compensatory rest period of 12 days per year (in order to bring their average working hours back down to 38 hours per week). The problem is that, during low activity periods, compensatory rest periods keep on accumulating, while it is not necessary for the IT consultants to work 40 hours per week during those low activity periods.
A potential solution: alternating maximum working hours
One solution could be for the consultant to work 40 hours per week during intense activity periods, and work 38 hours per week during low activity periods, while, at the same time, taking the compensatory rest period that they accumulated while working 40 hours per week.
According to the Labour Administration, it is acceptable for the employer and the worker to agree on the worker alternating between working 40 hours per week and 38 hours per week.
However, the following conditions need to be adhered to:
- This system is only collectively applicable: i.e. for all of the workers who work on site;
- These regulations need to be established in a detailed manner in a collective bargaining agreement, or in the company’s work regulations;
- More specifically, it is important to put emphasis on how to alternate between a 38-hour week and a 40-hour week, and vice versa, so that it can be determined, at any time, in which week (38 hours or 40 hours) the workers in question are. This is required in case of social inspection, and in order to prevent the employer from having to pay overtime pay to its workers;
- Furthermore, all of the applicable working hours need to be written down in the company’s work regulations;
- This system only applies in companies where the average working week is of 38 hours;
- The means for recuperating compensatory rest periods (paid or unpaid, individual recuperation or collective recuperation, and what happens if the employment contract is suspended…) also have to be regulated.
These rules are subject to legislative amendment. A Bill by the Minister for Employment, Kris Peeters, which is currently being negotiated by the social partners, could lead to a modification of this possibility. If this is the case, we will keep you informed.