With approximately 712 MW offshore wind capacity at present, and the construction of five new offshore wind farms, Belgium is a worldwide leader in the offshore production of electricity. In 2020, 2400 MW shall be installed along Belgium’s coast. Despite this sustained growth and the specificities of the business, the legal position of offshore wind farm employees is not specifically regulated.
Belgian working time rules
The legal framework for working time in Belgium is set out in the Act of 16 March 1971 (“Labour Act”). The Belgium labour market is, however, divided into business sectors. Within each sector, collective bargaining agreements (“CBAs”) are concluded between employer and employee representatives. As a rule, these CBAs may derogate from the Labour Act only if permitted by it.
This article shall not address the Labour Act’s provisions on working time (which also provides for schemes as minor and major flexibility, weather-related flexibility or management positions/positions of trust), but only the specific sectoral rules.
Indeed, Joint Committee no. 326 of the gas and electricity sector provides for some derogatory working time rules:
- For established employees under CBA of 29 September 2003 (employees in service as of 1 January 2002):
Weekly working time is set at 38 hours:
- From Monday until Thursday: 4 days of 7.75 hours;
- Friday or Saturday (if applicable): 1 day of 7 hours;
- Average weekly time is set at 35.83 hours on a yearly basis (with 13 extra-legal vacation days);
- Working schedules must be between 6 a.m. and 8 p.m.;
Compensatory rest days may be granted, upon request, to on call employees who have been on call either between 7 p.m. and 6 a.m. or for more than 11 hours, if these employees have performed at least 2 hours of effective service;
- For established employees under CBA of 2 December 2004 (employees in service before 31 December 2001), who work under flexible working schedules:
- Daily maximum working time is set at 9 hours;
- Weekly maximum working time is set at 38 hours to be reached on average during a reference period of one year;
- Practical modalities must be defined in the working regulations;
- Each employee may individually program his working schedule within the above limits;
- Compensatory rest days must be granted during a civil year for any overtime performed. Moreover, the balance may at no time exceed 65 hours. However, in case of extraordinary workload, if on 31 December the balance is not zero, then the compensatory rest days must be granted during the first trimester of the next civil year;
- Compensatory rest days for overtime consecutive to an accident or an imminent incident or an incident that has just occurred, which is performed between 1 April and 31 March of the following year, must be granted during the same period. Failing that, the balance is automatically recovered;
- Compensatory rest days must be granted during the civil year for on call and permanence services on Sundays and statutory holidays without effective work being performed. Employees may, however, add their compensatory rest days in a balance account and take them later;
- For established employees under CBA of 29 September 2003 and CBA of 2 December 2004, a maximum of 78 hours of overtime may be performed during a civil year. This limit may be extended to 91 hours after the third month of the year. The overtime balance that is immediately paid to employees without compensation rest days upon their request, is extended to 91 hours per civil year;
- There are also specific rules on overpay for work on Sundays, shift work and night work.
It should be emphasized that these sectoral rules do not specifically refer to the position of the offshore wind farms employees. This is quite surprising considering the material, temporal and meteorological factors that these employees face on a daily basis.
Government plan on working time
The Belgian government aims to reinforce company competitiveness, in order to recover economic activity and to create new jobs. As one of the most expanding industry sectors in Belgium, the offshore production of electricity sector is directly involved.
With regard to working time, the Belgian government plans to annualise working time, to introduce a weekly working time of 45 hours, to increase overtime that can be performed, and to introduce a so-called “career account” (which would record all overtime hours and untaken vacation days).
Currently, it is unfortunately too early to determine how these goals shall be executed and reflected in the offshore production of electricity sector.
Nota bene : Please note that this article only considers the working time rules as applicable for companies, which fall under the scope of JC 326 considering that their main activity is the production of electricity. Depending on the main activity of the company active within the offshore electricity sector, there could be another competent joint committee.
Sarah Claeys, Junior Associate, sarah.claeys@cms-db.com
Gaël Chuffart, Partner, gael.chuffart@cms-db.com
