E-commerce is omnipresent in Belgium where consumers
increasingly purchase products online. Despite this development,
Belgian companies have not benefited from the rise of the
e-commerce market and hardly conduct any e-commerce activities. The
biggest sticking point appears to have been the prohibition of
night work, whereby orders, placed during the afternoon or at
night, could not be delivered the following day.
Indeed, in principle, an employer can only employ employees at
night when he can rely on one of the statutory exceptions to the
prohibition of night work, namely:
The exception for certain activities
or particular types of work.
This exception does not exist for distribution activities.
The exception in the context of the
"regime of high flexibility" (regime van grote
flexibiliteit/ régime de grande
Joint Committees 201, 311 and 312 did not apply for the
establishment of such a system and thus, employers in the
distribution sector could not apply this exception.
The exception provided by Royal
Decree or for a particular type of work.
There was no such Royal Decree for the distribution sector.
To remedy this situation, the Belgian government and the social
partners of the distribution sector decided to provide for the
possibility of night work for distribution activities by
introducing a Royal Decree of 16 March 2016 whereby night work is
accepted for the performance of all activities related to
electronic commerce in those companies which fall under Joint
Committees ("JCs") 201 (independent retailing), 202
(retailing in foodstuffs), 201.01 (middle-sized food business), 311
(large retail establishments) and 312 (warehouses)
(Koninklijk besluit van 13 maart 2016 waarbij nachtarbeid wordt
toegestaan voor het uitvoeren van alle werkzaamheden verbonden aan
de elektronische handel .../Arrêté royal du 13 mars
2016 autorisant le travail de nuit pour l'exécution de
toutes les activités liées au commerce
électronique ...) and Collective bargaining agreements
("CBAs") of 14 January 2016 on the introduction of night
work for e-commerce activities, concluded in the JCs 201
(independent retailing), 202 (retailing in foodstuffs), 201.01
(middle-sized food business), 311 (large retail establishments) and
312 (warehouses) (Collectieve arbeidsovereenkomst van 14
januari 2016 betreffende het invoeren van nachtarbeid voor
e-commerce activiteiten.../Convention collective de travail du 14
janvier 2016 relative à l'introduction de travail de
nuit pour des activités e-commerce...).
The Royal Decree of 13 March 2016 introduces an exception for
employees employed in companies within the distribution sector (JCs
201, 202, 311, 312) for the performance of all activities related
to electronic commerce, insofar as this is justified by the nature
of the services or activities. The burden of proof in this
regard falls on the employer.
In addition, under the Royal Decree of 13 March 2016, employers
in the distribution sector (JCs 201, 202, 311, 312) are authorized
to introduce a system for employees to work at night. Employers
wishing to introduce such a system must, however, follow certain
procedures. The type of procedure which must be observed depends on
the desired timetable of the employer. A distinction is made
between two different concepts: "night work"
(nachtarbeid/travail de nuit) for work performed between 8
PM and 6 AM and "work regulation with night performances"
(arbeidsregeling met nachtprestaties/régime de travail
comportant des prestations de nuit) for work performed between
midnight and 5 AM.
If the employer wishes to introduce a work schedule which
includes night work, the work schedule must be included in the work
rules using the normal modification procedure as provided for in
the Law of 8 April 1965 on work rules (Wet van 8 april 1965 tot
instelling van de arbeidsreglementen/Loi du 8 avril 1965 instituant
les règlements de travail).
If the work is performed between midnight and 5 AM, a so-called
"work regulation with night performances" and a stricter
legal procedure, set out in Article 38 of the Labour Law of 16
March 1971 (Arbeidswet van 16 maart 1971/Loi du 16 mars 1971
sur le travail) and the CBAs of 14 January 2016, should be
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