Understanding Annual Holidays and Holiday Pay in Belgian Law

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Explore the legal framework and entitlements regarding annual holidays and holiday pay in Belgium, covering topics such as the right to be absent from work with continued pay, international standards, contract staff regulations, scope of application, and the length of holiday leave based on service years and working regimes.

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Annual holidays and holiday pay Marianne Gratia 9 September 2015 1

Introduction Right to be absent from work with continued pay Holiday days + holiday pay Depending on the status (statutory or contractual) Statutory minimum FPS Social Security 25 May 2020 2

International framework Non-binding standard UDHR (1948) Indirectly binding standards ILO Convention No. 132 (1970) European Directive 2003/88/EC of 4 November 2003 on the organisation of working time: Entitlement to at least 4 weeks of paid annual leave What is the basis of the right to annual holidays under Belgian law? FPS Social Security 25 May 2020 3

Contract staff - legal framework Since 1936, progressive build-up of the leave period Current standards are more than 40 years old Coordinated acts on annual holidays for employees of 28 June 1971 Royal Decree of 30 March 1967 laying down the general arrangements for implementation of the Acts on annual holidays for employees Difference manual workers clerical workers FPS Social Security 25 May 2020 4

Contract staff - Scope of application Persons subject to the (Belgian) social security scheme Persons who for social security purposes are treated as employees Examples: transport of goods (conditions) excluded: certain instructors, students (max 50 days/year), casual workers. Belgium: social security branch (creation of rights)><Europe: labour law BUT: The country of occupation plays a decisive role (Directive 96/71) FPS Social Security 25 May 2020 5

Length of holiday leave FPS Social Security 25 May 2020 6

Length of holiday leave Distinction holiday service year (or reference year) and holiday year Principle: 2 days per month worked or assimilated month during the holiday service year. = 4 weeks (24 days in the 6-day system, 20 days in the 5- day system, ...): apply the working regime at the time of taking holidays. No binding right in case of entry/exit from service during the month Holiday days : Holidays cannot be taken in hours FPS Social Security 25 May 2020 7

Length of holiday leave Main causes of assimilation with actual work for annual leave: Illness during the first 12 months; Maternity leave, maternity protection and breastfeeding breaks; Paternity leave; Public holidays; Annual holiday leave days; Days of absence for which remuneration is paid NOT: parental leave, leave for compelling circumstances, ... FPS Social Security 25 May 2020 8

Part-time work Different hypotheses are possible: Part-time during the holiday service year and during the holiday year: principle: 4 weeks From half-time scheme during the holiday service year to full-time scheme during the holiday year: calculation on the basis of part- time benefits during the holiday year From full-time to part-time scheme: 4 weeks holiday Part-time and full-time during the same holiday service year: Proportional calculation FPS Social Security 25 May 2020 9

Part-time work Principle of the hierarchy of norms Usually individual agreement Minimum guarantees: Holiday taken within 12 months of the end of the holiday service year preferably during the school holiday period for heads of household 1 (minimum), 2 (all) or 3 weeks (18 years) uninterrupted Collective closure FPS Social Security 25 May 2020 10

Coincidence of leaves Qualification as AL has priority in particular: Legal holidays (+ compensation days); Days of rest imposed by laws and royal decrees; Usual days of inactivity; Certain days of work interruption (paternity leave, etc.); Qualification as AL has priority if prior to AL Accident (at work); (occupational) illness; >< European law (CoJ-EU) Qualification as AL has priority in case of: strike; Parental leave FPS Social Security 25 May 2020 11

Holiday allowance FPS Social Security 25 May 2020 12

Holiday allowance Paid by the employer During the contract period Each element of remuneration must be taken into account. Example: overtime worked in exceptional cases: Holiday pay is due, regardless of whether or not overtime is part of the worker's normal working conditions. FPS Social Security 25 May 2020 13

Holiday allowance A. Fixed remuneration Single pay = Regular pay Double holiday pay: (annual) additional holiday pay at the time of the "main" holidays = 1/12 of 92% of the gross monthly pay and per month worked/assimilated during the holiday service year Example= if 12 months worked: 1/12 X 92% X 12/12 Monthly gross pay = all items that are subject to payment of contributions paid tot the ONSS. NOT bonuses paid once a year ! Double pay cannot be included in the monthly/annual remuneration. FPS Social Security 25 May 2020 14

Holiday allowance Main holiday = the longest uninterrupted period of holidays (source: Q and R, the Chamber, 1992-93, 20 April 1993, 5848 (Q No. 153 GOI)) Administrative clarification: main holiday = the first uninterrupted holiday period of at least 1 week, unless longer holiday period within the calendar year. FPS Social Security 25 May 2020 15

Holiday allowance B. Variable remuneration No definition but description in regulations Assessment criteria: Certain criteria make payment uncertain variable amount Examine, on a case-by-case basis, the criteria for granting the benefit NOT the frequency or timing of bonus payments Examples: bonuses linked to the employee's results, commissions, allowances for additional services (if non-recurring) FPS Social Security 25 May 2020 16

Variable pay - calculation of holiday pay Simple holiday pay = the average daily variable compensation earned during the last 12 months before the (main) holiday period Double holiday allowance = -1/12 of 92% of the average monthly variable pay for the 12 months preceding the month of holiday leave. -must be paid at the time of granting the main holiday. FPS Social Security 25 May 2020 17

departure holiday pay At the end of the service ~ departure holiday pay: At the time of departure: When the employment contract has ended In case of total career interruption In case of full-time credit If the employee is called to arms in the event of employment within the framework of the law of 24 July 1987 concerning temporary employment, temporary agency work and the posting of employees In case of retirement FPS Social Security 25 May 2020 18

departure holiday pay - calculation 15.34% of gross remuneration earned with the employer during the current holiday service year, + possibly fictitious remuneration relating to assimilated days of work interruption + 15.34% of the gross remuneration earned with the employer during the previous holiday service year if the holiday days related to the previous year have not (all) been taken, Gross remuneration = all benefits subject to the payment of social security contributions. NOT on double holiday pay, professional expenses,... FPS Social Security 25 May 2020 19

departure holiday pay Additional legal obligation: Drawing up and delivery of a holiday certificate: Contains mandatory information To allow deduction/calculation by the subsequent employer Source: art.48, Royal Decree 30 March 1967 FPS Social Security 25 May 2020 20

End-of-year settlement Settlement at the end of December of the holiday year 1) In the event of a reduction in the average number of hours worked for the same employer, no matter how large the reduction is. Amount due: Single and double (7.67%+7.67%) holiday pay calculated on gross remuneration earned during the holiday service year reduced by the amount of holiday pay already received according to the working time arrangements in force at that time Not on fixed end-of-year bonuses Art.46, 3, RD 30 March 1967 FPS Social Security 25 May 2020 21

End-of-year settlement 2) in the event that holidays cannot be taken circumstances beyond control Example: Illness The complete suspension of the execution of the employment contract is not covered by Article 46. NOT career interruption or time credit. Amount due: - Simple: holiday pay relating to days of holiday not taken on the basis of the remuneration for the month of December. - Double if not yet paid: (remuneration December X 92%) X days not taken number of days off Art. 67 Royal Decree 30 March 1967 FPS Social Security 25 May 2020 22

Social contributions due on holiday pay Principle of exclusion of the payment of contributions BUT extension of the notion of remuneration for: simple holiday pay during work period; simple departure holiday pay (7.67%) Solidarity contribution (13.07%) on an amount of 85% of the double holiday pay (= until the 3rd day of the 4th holiday week) Amounts paid in addition to the legal double holiday pay = remuneration FPS Social Security 25 May 2020 23

Social contributions due on holiday pay Legal basis Social security contributions Employer Employee Simple holiday pay Art 38, 1 and 39 of the R.D. 30.03.67 Normal contribution of 13.07%. Normal contribution Double holiday pay (85%) Art. 38, 2 and 39 of the R.D. 30.03.67 Special (solidarity) contribution of 13.07%. No Complementary double holiday pay (7%) Art. 38, 2 and 39 of the R.D. 30.03.67 No, cf. AR 28/11/69, art. 19, 1. Not cf. AR 28/11/69, art. 19, 1. FPS Social Security 25 May 2020 24

Social contributions due on departure holiday pay Social security contributions Holiday pay Legal basis Employee Employer Simple departure holiday pay (7,67%) Double departure holiday pay(6,8%) Art. 46 al 2 of the R.D. of 30.03.67 Yes Yes [ Art. 46 al 2 of the R.D. of 30.03.67 Special (solidarity) contribution of 13.07%. No Complementary double departure holiday pay (0,87%) Simple advance holiday pay (7,67%) Art. 46 al 2 of the R.D. of 30.03.67 Not cf. AR 28/11/69, art. 19, 1. Not cf. AR 28/11/69, art. 19, 1. Art. 46 al 1 of the R.D. of 30.03.67 Yes Yes Advance double holiday pay (6,8%) Art. 46 al 1 of the R.D. of 30.03.67 Special (solidarity) contribution of 13.07%. No Advance complementary double Art. 46 al 1 of the R.D. of 30.03.67 No, cf. AR 28/11/69, art. 19, 1. 25 MAY 2020 No, cf. AR 28/11/69, art. 19, 1. FPS Social Security holiday pay (0,87%) 25

Social security contributions when the employee is unable to take his or her holiday days Social security contributions Employee No Holiday pay Legal basis Employer Simple holiday pay Art. 67 of the R.D. of 30.03.67 No Double pay (calculation to be made only if it has not been paid or has not been paid in full) (85%) Art. 67 of the R.D. of 30.03.67 Special (solidarity) contribution of 13.07%. No Complementary double holiday pay (calculation to be made only if it has not been paid or if it has not been paid in full) (7%) Art. 67 of the R.D. of 30.03.67 No, cf. AR 28/11/69, art. 19, 1. No, cf. AR 28/11/69, art. 19, 1. FPS Social Security 10 septembre 2024 26

Additional holidays In the event of start or resumption of professional activity (until the end of the following year) 3 month start-up period (in each calendar year) allowance increases (2 days/month after start-up period) Payment by double holiday pay for the following year (pre-financing) After exhaustion of ordinary holiday days Additional entries on the holiday certificate FPS Social Security 25 May 2020 27

Changes of employer Statutory contractual employment: Not regular VA but extra VA Contractual employment : Determination of the duration of holidays and holiday pay with the help of holiday certificate(s). in 4 steps If worker then employee: 1% solidarity contribution not to be recovered FPS Social Security 25 May 2020 28

Criminal offences and penalties Legislation in the field of VA is imperative law to the advantage of the worker, or even to the benefit of public order. Social Penal Code: Days of IL not granted (on time) Non-payment or failure to pay on time Level 2 penalty (fines), multiplied by the number of workers If the holiday certificate is not delivered, the social inspectors may order it to be completed and delivered to the worker within a period they determine FPS Social Security 25 May 2020 29