• Can you apply temporary unemployment if you have to shut down production because of excessive energy costs?
• What about overtime in a period of temporary unemployment energy?
• What if you experience payment problems? Can you request a deferral from the NSSO and the tax authorities?
  • Postponement of payment NSSO
  • Payment delay FPS Finance

From 1 October 2022 until 31 March 2023, you can apply ‘temporary unemployment energy’. This is a temporary variant of classic economic unemployment for energy-intensive companies. This is any company that meets one of the following conditions:

• the cost to purchase energy products (including energy products other than natural gas and electricity) represents at least 3% of value added for the calendar year 2021

or

• your final energy bill for the quarter preceding the quarter in which you apply for temporary energy unemployment is double that of your final energy bill for the same quarter of the previous year.

All the rules on economic unemployment apply except for some derogatory provisions. These are:

• In order to apply the temporary unemployment energy, 8 calendar days before the first scheduled day of unemployment, you have to fill in a form C 106 A – Energie and send it via e-mail or registered mail to the unemployment office of the NEO (National Employment Office) competent for the establishment where the temporary unemployment will be applied.
• Once you have received confirmation that your application has been received and processed, you must notify your workers and the NEO at least 3 calendar days before the first scheduled day of unemployment. You do the latter via the social security portal. You select 'gebrek aan werk / manque de travail’ for your blue-collar workers and 'suspension of white-collar workers' for your white-collar workers. In the comment zone you state that you made a request for temporary unemployment energy.
• You can apply a full suspension for a maximum of 4 weeks or a partial suspension for a maximum of 13 weeks. After this period, you do not have to enter a compulsory working week. You can immediately afterwards start a new period of temporary unemployment.
• Your employees receive benefits at 70 per cent of the capped average gross pay that you declare to the NEO via the monthly WECH005 declaration.
• Your employee is entitled to an additional allowance of at least 6.34 euros (amount valid on 1 November 2022) per day of temporary unemployment. If a collective agreement has already been concluded in your sector that imposes on you or the sectoral fund the payment of a supplement in the event of economic unemployment, you apply these rules. At least, with respect for the threshold of 6.34 euros (amount valid on 1 November 2022). If no supplement has yet been determined, you must pay 6.34 euros (amount valid on 1 November 2022) per day. This supplementary payment is not subject to social security contributions, but it is taxable on the part of your employee.

The classic rules on economic unemployment are as follows:

• Each month, you communicate the first day of temporary unemployment via the social security portal.
• The days of temporary unemployment will count for your employees' holiday entitlement and holiday pay.

We take care of all these obligations for you. Contact us at bpo.service@acerta.be or 016/24.56.88.

Before you can make an employee temporarily unemployed, all full days of catch-up rest must have been taken by that person.

If you apply temporary unemployment energy, then you cannot simply allow overtime to be performed. Strictly speaking, performing overtime and temporary unemployment do not go together. In some cases, a company's specific situation justifies some employees performing overtime during a period of temporary unemployment. However, this will have to be considered on a case-by-case basis and you will have to be able to present a good justification to the NEO.

The federal government decided to grant deferral of payment of social security contributions. You can find more information on this subject here.

As during the corona crisis, the federal government decided to take a series of fiscal support measures in the context of the energy crisis as well.

• Deferral of payment of withholding tax (WHT) due

The FPS Finance will grant an automatic 2-month deferral of payment of withholding tax on income from operations, without incurring late payment interest or penalties.

This period can still be extended.

Monthly withholding tax declaration

For those companies for which the declaration must be submitted on a monthly basis, this deferral relates to the declarations of November and December 2022.

The deadline to make the payment will be extended by two months, making the payment dates as follows:

• November 2022: February 15 2023 instead of  December 15 2022
• December 2022: March 15 2023 instead of  January 15 2023

Quarterly withholding tax return

For those companies for which the declaration must be submitted on a quarterly basis, this deferral will apply to the payment related to the fourth quarter 2022 return. The deadline will be extended to  March 15 2023 instead of January 15 2023.

• Entry into force?

This aid measure will take effect from November 1. 2022.

Automatic deferral of payment of personal income tax, corporate income tax, non-resident tax and legal entities tax - assessment year 2022

In addition, the federal government also granted a general payment deferral for all payments for the assessment year 2022 regarding:

• the personal income tax
• corporation tax
• the tax on non-residents
• the tax on legal persons

The standard payment term of 2 months is extended to 4 months for all assessment notices for assessment year 2022 (for enforceable declarations until 31 October 2023).

Depending on the date the assessment notice is sent, the payment term mentioned on the assessment notice will or will not already be the adjusted date. More information can be found on the website of the FPS Finance (only available in Dutch and French).

• Application for a Tax debt repayment plan

Companies suffering under the energy crisis, and being able to demonstrate this, can request an instalment plan for the payment of their debts to the FPS Finance.

Such a plan can be requested for debts relating to withholding tax on income, VAT, personal income tax, corporation tax or tax on legal entities.

As a company, you must apply for this yourself at the time you receive the tax notice or payment notice. More information and the specific procedure for submitting this application can be found on the website of the FPS Finance (only available in Dutch and French).

Taxpayers experiencing serious financial difficulties can also request exemption from the payment of any late payment interest.

• Alternatives to wage (indexation)
  • As an employer, can you reduce your employees' gross pay?
  • As an employer, can you reduce the gross pay of your employees and (in exchange) increase meal and/or eco cheques?
  • What if, as an employer, you want to replace part of the gross salary with an alternative wage benefit?
  • As an employer, can you agree with your employees not to apply or only partially apply an indexation ?
  • As an employer, can you stipulate that indexation (at a fixed time) will not apply to a new employee?
• Pensions and supplementary insurances provided by the employer
  • My employee is temporarily unemployed due to the energy crisis. What does this mean for his/her future pension?
  • What about your employee's group insurance and/or hospitalisation insurance in case of temporary unemployment?

Wages are one of the essential elements of the employment contract and therefore cannot be changed unilaterally.

However, a wage reduction can be achieved through:

• concluding a collective agreement between the employer and the representative employee organisation(s), or
• if concluding a collective agreement is not possible, through an individual agreement between the employer and the employee in which they agree to reduce wages (temporarily or otherwise). This agreement then usually takes the form of an annex to the employment contract.

Note! The possibility of reducing wages is not unlimited.  An employer must always respect the applicable (sectoral) minimum wage. This is therefore the lower limit. Agreements that provide for less pay than the (sectoral) minimum wage are therefore not valid and may even give rise to criminal sanctions.

Meal vouchers and eco vouchers constitute a benefit that is in principle exempt from social security contributions and taxes. However, this requires a number of specific conditions to be met.

One of these conditions explicitly stipulates that meal vouchers and/or eco vouchers may not be granted to replace or convert wages, bonuses, benefits in kind or any other benefit or supplement thereto.

Reducing pay and (partially) compensating for this by increasing an existing meal and/or eco voucher scheme or introducing meal and/or eco vouchers is therefore not in line with these conditions. The extra meal and/or eco cheques used to compensate the loss of salary are thus considered as pay on which NSSO contributions and taxes are due.

If, as an employer, you want your employee to help pay for an alternative benefit, such as a company bicycle, a reduction in the salary can be mutually agreed, always respecting the applicable minimum wages. In that case, the employee can temporarily co-finance the bicycle on a monthly basis.

For other wage benefits, the legislator explicitly stipulates that the benefit may not be granted to replace or convert wages, bonuses, benefits in kind or any other benefit or supplement thereto. Thus, a non-recurring result-related benefit (cf. CLA 90) - granted upon achievement of predetermined objective objectives - cannot be introduced in place of an existing wage benefit. The same applies to the one-off innovation bonus that an employer can grant to employees who introduce a novelty that adds real value to the normal activities of the employer granting the bonus.

Indexation of wages is usually regulated by sector, via collective agreements.

These collective agreements not only determine the index mechanism itself (fixed time indexation or indexation when the pivot index is exceeded) but also determine which wages, and other benefits, are indexed.

A collective agreement is declared generally binding via a royal decree and then applies to all employers and their employees in the sector concerned. As a result, an individual employer cannot deviate from compulsory indexation.

Of course, nuances are possible: for example, if the sector provides to index only the sectoral minimum wages and the employer in question pays higher wages at company level, then there is no obligation to index these (higher) company wages.

A collective agreement that has not yet been declared universally binding does not bind the employer that is not a member of the employers' federation that co-signed the sectoral collective agreement. However, this is only a delay. A subsequent declaration of universal applicability ensures that the employer still (and retroactively) has to follow this collective agreement.

Suppose a new employee joins from January 2023. The sectoral collective agreement provides for a (very) high indexation of wages at that time. Does this index increase automatically apply to this new employee?

Wages are one of the essential elements of the employment contract.  If, as an employer, you would look for an opportunity to anticipate this high wage indexation, you could possibly include in the employment contract that the wage agreed with the new employee already contains the indexation of January 2023. If you pay purely according to the minimum wages in the sector, then such provision is obviously not possible. The (new) employee must always receive at least the sectoral minimum wage applicable at that time.

The period of temporary unemployment is assimilated to a period worked. There is no impact on the retirement date nor on the pension amount.

In case of a suspension of the employment contract for which you, as an employer, are not liable to pay wages, the guarantees on hospitalisation, pensions, death and disability benefits for your employees may lapse. This may be the case, for example, in the case of temporary unemployment.

The law provides that from 15 October 2022, your employees will automatically continue to enjoy these guarantees during the period they are temporarily unemployed due to the energy crisis unless you have made other arrangements about this in the pension regulations or the pension agreement.

Your pension institution will have to inform you about this. If the guarantees continue, you will continue to pay contributions as if the agreement had not been suspended.

You can also defer payment of the contributions on simple request until no later than 31 March 2023, without an earlier payment date being imposed and without the non-payment of the contribution on the due date as provided for in the pension regulations or agreement constituting a default.

The existing death cover as provided in the existing regulations or agreement is also maintained. This is also the case if the proposal to continue during the suspension is rejected.

The continuation of pension commitment requires a formal adjustment of the pension regulations or agreement. This adjustment must be made by 31 December 2023 at the latest.

The date of 31 March 2023 and 31 December 2023 may be extended, in the light of any extension of the special temporary economic unemployment energy scheme.

• Telework organisation and compensation
  • Increasing homework allowance?
  • Are other teleworking locations possible?
  • Can my employee decide to come back to the office more or can you as an employer decide that your employees should work more from home?
• Increasing purchasing power and financial help
  • Can you intervene in another way to help with the energy bills of homeworkers?

Can your employee ask for an extra contribution if he/she works more from home or continues to work from home this autumn?

If your employee works at home structurally and regularly, you can grant him/her a home working allowance. This covers, among other things, the costs of heating and electricity at the home office. If you grant this, it is also included in your telework agreement. Here, too, adjustments are only possible by mutual agreement.

If you decide to grant a higher home working allowance, until 31 December 2022, you can grant a maximum of €145,81 per month, free of social security and taxes. As of 1 January 2023, the maximum rises to €148,73. You do not have to prorate the amount for your part-time employees either.

Note that you cannot award a higher home working allowance to an individual employee. The allowance must always be made to objectively distinguishable employee categories.

Can my employees work, for example, in a local municipal sports centre instead of at home, and are then entitled to a home-working allowance?

The homeworking allowance only enjoys the parafiscally favourable status if your employee incurs real costs and works in his/her private home. This is usually the home address or the place of residence as listed in the telework appendix. A municipal sports centre is not a private residence. Moreover, the employee does not incur any expenses at home that need to be reimbursed.

In addition, your employee is only protected in case of an accident at work that occurs in a place(s) of employment communicated to you. As an employer, you would therefore do well to lay down rules governing where telework must take place.

You cannot unilaterally change the place of work. After all, it is an essential condition of the employment relationship. Only by mutual agreement are adjustments possible.

Have you already rolled out homeworking rules in your company, whereby your employees are expected in the office some days and can work from home some days? In principle, these arrangements are laid down in a written telework annex to the employment contract and/or in a company collective agreement. If you want to change the arrangements, those changes should also be included therein

The homeworking allowance is the most obvious intervention. Other interventions – e.g. in the form of an energy premium – are not (yet) legally framed. If you wish to grant a monthly premium, it is still a salary and subject to social security contributions and taxes.

Since the beginning of this year, the free provision of electricity and heating has no longer enjoyed a favourable status either. If you wish to do so, a benefit is calculated for your employee on the actual value.

• As an employer, can you adjust your company car policy to save costs?

If you make a company car and/or fuel card available to your employees, several avenues are conceivable for adapting your policy, depending on the existing agreements:

• you can implement more limited private use;
• you can ask for a personal contribution;
• you can switch to a smaller, greener car;
• you can limit the use of the fuel card.

The existing agreements on this subject, laid down in your employees' employment contract, in your car policy or fuel card policy, your labour regulations or possibly a company collective labour agreement, will always serve as a guideline.

You should therefore always check what specific possibilities they contain. For instance, are there change clauses allowing you to make periodic changes? Then you can invoke these.

It is important to note that these agreements can never be unilaterally amended. You always need the consent of your employee and/or the trade union bodies. A new (adapted) company car policy can of course be implemented for employees who are newly hired.

• I don't have enough work for my employees due to the energy crisis. What can I do?

You could consider placing your staff on temporary unemployment. However, this means they will revert to NES-benefits, and lose some of their income.

Therefore, you can alternatively consider assigning your employees temporarily to another short-staffed employer. This will give your employees financial security and provide a valuable new experience. This is called "employee sharing". For example, there are power-intensive companies that need to temporarily reduce production, but their employees can go to work in neighbouring companies that require full production. You then temporarily share your employees with another employer. And who knows, you might find this sharing interesting and continue this collaboration afterwards.

Acerta can help you with these matters, both by setting up an ecosystem with other employers and by setting up a tailor-made legal solution. More information can be found on the Acerta Bridge website and you can contact our consultants by phone at +32 16 24 63 45 or by e-mail at legal.consult@acerta.be.