Nationwide Strike: How to ensure your business can continue to run?
On Wednesday 13 February 2019, employers will face a nationwide strike. With the action, trade unions urge as many employees as possible to put down work and stage a widespread walkout. As a result, employers inevitably start to contemplate ways to deal with the shortage resulting from the absence of their employees. Belgian law, however, appears to be very strict in this regard. What are the best ways to ensure that your business can continue to run?
Replacement employment agreement?
It might seem tempting to replace a striking employee by hiring another worker with a temporary replacement agreement (vervangingsovereenkomst / contrat de remplacement). Once the replaced employee returns, this type of agreement allows for a smooth termination of the replacement-employee without having to respect any notice period.
Such agreement is for example permitted for replacing employees whose employment contract is suspended for reasons of sickness or parental. It is however absolutely prohibited to introduce this in case of lack of work due to a strike.
Employees who have been engaged with such contract to replace a striking worker, are allowed to claim their severance pay in accordance with the regular dismissal rules for employment contracts of indefinite duration.
Temporary agency worker?
Employers looking for flexible solutions commonly reach out to recognised employment agencies to employ temporary workers.
Temporary employment agencies are however banned from putting temporary employees at the disposal of a user in the event of strike.
It is important to note that this ban also applies on temporary workers who are already working for a user before the strike launches. On 13 February 2019, these temporary workers will have to leave the impacted site(s) from the moment the strike hits.
If an employer does not respect this prohibition, the temporary employment contracts will automatically be converted into a contract of indefinite duration. In addition, criminal sanction may (in theory) also apply.
Student employment agreements?
A practical solution could comprise the hiring of students. As such, the law does not foresee any restriction on the use of student employment agreements in case of a strike.
Moreover, most students are currently enjoying the end of their first exam period and might be looking for diverse temporary jobs.
From a practical point of view, it might be less feasible to efficiently use students to replace striking employees for certain technical or experienced positions. Your own workforce might be able to accommodate this inconvenience…
Your own workforce?
It is definitely possible to use your own workforce to replace employees who put down work in order to keep the business running.
This is the most flexible option, since your fixed employees know the company from the inside out. On top of that, this action has a good chance of entailing a feeling of solidarity and increasing the company spirit on a tumultuous day.
Of course, if their tasks differ from their normal function, these employees should expressly agree with this temporary modification.
This can simply be implemented by sending an e-mail to the concerned employees explicitly asking them if they would like to help out on the day of the nationwide strike.
KrisDe SchutterAttorney at Law Partner
Kris De Schutter is a partner in our office in Brussels and member of Loyens & Loeff’s Employment & Benefits Practice Group. He has extensive experience in alternative (flexible) remuneration, restructuring and change processes.T: +32 2 700 10 13 E: firstname.lastname@example.org
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