Conditions for Family Reunification Have Been Changed
Effective 22 September 2011 some new rules for family reunification apply. This will have consequences for family members who are non-EEA nationals (European Economic Area) accompanying a non-EEA employee to Belgium.
Spouses and "registered partners" of such non-EEA employees, as well as their children can obtain a residence permit by following a family reunification procedure, which could up until now take up to nine months.
The three main changes that have been made are:
- the foreign employee (non-EEA national) must have an income (which may not originate from public social security assistance) that is at least 120% of the Belgian minimum living standard income. This percentage was introduced to avoid abuses;
- this employee must have adequate housingthat meets basic safety- health- and living quality conditions;
- the notion "durable and stable relationship" (referring to "registered partners") is now expressly legally defined. Such relation is only proven if (i) the partners can prove that for at least one year they have lived legally together in Belgium or elsewhere, (ii) if they prove that they have known each other and have had regular contact for at least two years (instead of one year under the old legislation), or, (iii) if they have a common child.
With regard to the duration of the procedure, the decision on the residence permit must be taken within six months after filing the request.
Tax Circular on 'Project Private PC'
The contribution an employer makes towards what an employee pays for a computer and/or related material can be exempted from tax under certain conditions and within certain limits.
Since 1 January 2009, a new exemption scheme has applied in such situations and the tax authorities have now published a circular on this subject (circular of 11 July 2011).
This scheme is aimed at employees whose annual taxable remuneration does not exceed 21.600 EUR (not indexed amount) or 30.540 EUR for the 2012 tax year.
Continue Reading...Blue-collar Worker vs White-collar Worker: The Constitutional Court Requires the Legislator to Act
In a judgment of 7 July 2011 the Constitutional Court ruled that the legal provisions concerning the notice periods for blue-collar workers and concerning the so-called "carenz-day" for blue collar workers are contrary to the constitutional principle of equality. The Court gives the legislator two years time (until 8 July 2013 at the latest) to remedy this discrimination and to accomplish the harmonisation of the legal position of blue- and white-collar workers.
On 8 July 1993, the Constitutional Court ruled that the difference in treatment between blue-collar and white-collar workers which is purely based on the nature of the work, can hardly be considered as a distinction that is based on an objective and reasonable criterion. Therefore, it was up to the legislator to proceed, at least gradually, to a harmonisation of the legal position of blue- and white-collar workers.
Continue Reading...Compensating Employees' Professional Mileage: The Maximum Amount of Compensation has Changed
As from 1 July 2011, the maximum amount of the fixed mileage compensation is set at 0.3352 EUR per kilometer.
This fixed amount can be granted to an employee who uses his own vehicle (car, motorcycle or moped) to travel for his employer. For tax purposes, travel between the place of residence and the fixed place of employment cannot be considered as a professional travel and hence cannot be regarded as "travel on behalf of the employer".
Continue Reading...The Brussels Labour Court Rejects Evidence on the Basis of an Employee's Entitlement to a Reasonable Expectation of Privacy
A managing director, accompanied by a union representative, breaks open the locked closet of a cleaner, without her knowledge, and notes the presence of objects belonging to the company inside. Informed of this observation, the employee admits that she had put the objects inside the locker.
In its judgement of 2 May 2011, the Brussels Labour Court stated that these observations cannot be used in court as the privacy of the employee was invaded and such privacy is protected by Article 22 of the Constitution and Article 8 of European Convention of Human Rights, directly applicable to parties of an employment contract.
Continue Reading...New Tax Exemption for Severance Pay
The Belgian Official Gazette has published the Act based on which the remuneration received by employees during their notice period will be exempt from tax up to an amount of 425 EUR (not indexed). As from 1 January 2014, the exempt amount will be doubled. The same exemption applies when the employee receives a severance pay.
This exemption, however, involves some limitations. Thus, there is no exemption when the employment contract is being terminated:
- by the employee;
- during the trial period;
- for serious cause; or
- for the purpose of accessing a pension or bridging pension regime.
Neither does the exemption apply in case of termination of an employment contract for a definite period or for a specific work assignment.
Continue Reading...Seniority Premium: The Tax Authorities Tune to the NOSS
In its circular of 23 May 2011, the Belgian tax authorities tuned their position with regard to seniority premiums following the recent clarification issued by the National Office of Social Security (NOSS).
For the seniority premium to be exempted from social security contributions and tax, a number of conditions must be met.
The NOSS had already indicated that the seniority premium can only be granted twice in an employee's career: a first time at the earliest in the calendar year in which the employee completes 25 years of service, and a second time at the earliest in the calendar year in which the employee completes 35 years of service.
For reasons of consistency, the tax exemption must also be conditional to the fact that the premium is granted at the earliest at 25 or 35 years of service, without it being required that it is granted at the moment this seniority is acquired.
A seniority premium which is awarded for the first time to celebrate 30 years of service thus meets the conditions for tax exemption.
It remains of course important that the premium is linked to the seniority of the employee. Premiums awarded for reasons other than seniority remain excluded from the beneficial tax regime.
The (new) exemption applies retroactively to seniority premiums awarded or paid as of 1 January 2006.
The Supreme Court Comes to a Final Verdict: A Protected Employee Can Waive His Entitlement to the Protection Indemnity
A (candidate-) employee representative can only be dismissed after following the procedures provided for by the Act of 19 March 1991 (dismissal for serious cause or for economic/technical reasons).
In the event of non-compliance with the procedures, the employee is entitled to a protection indemnity which varies from two to eight years of salary.
Can a (candidate-) employee representative waive his entitlement to the protection indemnity after his dismissal? The question has been the subject of controversy since the entry into force of the Act of 19 March 1991 twenty years ago. However, it appears from the case law following the social elections of 2008 that our five Belgian Labour Courts concur with the position that even though the protection is a matter of public order, the employee may validly waive his entitlement to the protection indemnity after his dismissal, since the legal provisions regarding this indemnity do not have a "public order" nature.
In a recently published decision of 16 May 2011, the Supreme Court has now fully confirmed this position. According to the Supreme Court, the fact that the protection against dismissal is a matter of public order the does not mean that rights resulting from this protection would also become matters of public order, making it impossible for the protected employee to waive his entitlement to these rights. As soon as it is established that the employer has not respected the dismissal procedure and that the employee has not requested his reintegration into the employer's company or this reintegration has been refused by the employer, the entitlement to the protection indemnity is finally acquired and the employee may consequently waive it. This decision is of course important in the framework of negotiated departure deals (e.g. early retirement pension). If a settlement agreement takes into account the conditions set out by the Supreme Court, it will be much more secure in the event of possible challenges.
Protected Employees and the 2012 Social Elections: A Sole Candidate also Enjoys Protection against Dismissal
The Supreme Court has again handed down a judgment from which it is clear that the combination of on the one hand protected employees and on the other hand social elections is still giving rise to disputes.
The law requires for instance that, at all times, at least two employee representatives have to be seated in the Works Council and/or the Committee for Prevention and Protection at Work. This is also the reason why an employer can stop the election procedure in his undertaking (TOU) if only one candidate is proposed. In a recently published judgment of 4 April 2011, the Supreme Court gave its opinion about the scope of the dismissal protection of such an employee who was the sole candidate for the social elections.
In this judgment the Court clarified that, in this case, the employee concerned is not considered to be effectively chosen and therefore only enjoys a protection as a candidate employee representative (during four years). This also means that, if a similar scenario would repeat itself during the next social elections, the employee concerned would not be elected twice and would therefore be protected at the second social elections for a duration of two years (instead of four years).
In this context, we also wish to remind you that the so-called "hidden protection period" for the candidates at the 2012 social elections already starts on X-30. In function of your election calendar, this period therefore starts between 8 and 21 January 2012.
Business Trips Abroad: New Flat Rate Allowances
With the ministerial decision of 28 April the new list of flat rate daily allowances, which the Federal Public Service Foreign Affairs grants to its employees who undertake "short business trips" abroad, is approved. In this regard, short business trips are those not lasting longer than 30 calendar days.
These daily allowances cover costs for meals and other small expenses for which it is not always possible for the employee or for the manager who is on a business trip abroad to obtain receipts.
The costs for staying overnight and the travel costs to and from abroad do not fall within the scope of the allowances.
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