Federal Government Agreement topical deep dive: working time rules

With significant changes on the horizon following the Arizona Agreement, now is the time to prepare. In our deep dive series, we go beyond the initial overview, providing a more detailed and concrete analysis of key measures and assessing their potential impact on your business. 

In this newsflash, we focus on the transformation of working time rules. A full revision of the outdated working time regulations from 1971 is unlikely to occur even if this legislation does not reflect current practices or recent case law on time registration from the Court of Justice of the European Union (CJEU).

However, to boost competitiveness, the new government intends to revise several principles related to working time and provide more flexibility for parties to mutually determine their working hours within the framework of European regulations.

Accordion schedules

By 30 June 2025, and after consultation with the social partners, the government wishes to introduce a new legislative framework known as “accordion schedules”. This framework will allow for the annualisation of working time for both part-time and full-time workers. Essentially, weekly working hours will need to be adhered to on an annual basis, allowing for deviations on a weekly level. The employees will have the option to choose between receiving compensatory rest or a pay-out of the extra hours worked, meaning that the average weekly working time over the year does not necessarily need to be maintained.

On the one hand, these new accordion schedules are not ground-breaking:

• The reference period for assessing average weekly working time can already be extended from 3 months to 1 year for any schedule.

• Under the small flexibility system (Article 20bis of the Labour Act), and particularly under the flexible working schedules (Article 20ter of the Labour Act), it is currently permissible to adjust weekly working hours freely, allowing employees to work more or less than the average weekly time, up to 9 hours per day and 45 hours per week.

On the other hand, flexible working schemes typically require that the average working time threshold be respected during the reference period through compensatory rest. Allowing parties to decide whether to compensate the hours or pay them out contradicts these principles and indicates a shift towards more flexibility. Choosing pay-out over compensation increases employee income and reduces operational impact for the employer.

In view of the CCOO (C-55/18) and Loredas (C-531/23) CJEU decisions which require Member States to impose an objective and reliable system to measure daily working time, time registration will very likely be required for the “accordion schedules”. It is indeed explicitly mentioned in the government agreement that “where possible, time registration will be introduced.” 

Finally, the actual level of flexibility and added value will depend on what thresholds will be applicable for daily and weekly working time. This remains to be seen.

Increase of voluntary overtime hours and embedding relance hours

The Arizona-parties plan to introduce 360 voluntary extra hours beyond normal working time, without compensatory rest or motivation required. Of these, 240 hours will be exempt from social security contributions, taxes, and overtime pay obligations, similar to the current “relance hours.” The remaining 120 hours will require overtime pay if thresholds are exceeded and will be subject to regular social security contributions and taxes.

The formal requirement to sign a written agreement with each individual employee, to be renewed every 6 months, will also be simplified. Parties will be able to conclude a one-off written agreement which can be cancelled at any time with a 6 month notice period.

Finally, it is clarified that voluntary overtime hours will be restricted to full-time employees and part-time employees who have worked part-time for at least 3 years, on the condition that there is a temporary increase of work. 

This measure is very useful in practice, especially since the 'regular' regimes for extra hours are only allowed in specific unforeseen circumstances (such as unforeseen necessity or exceptional increase of work) and involve burdensome administrative tasks such as the requirement to obtain approval from the trade union delegation or obligation to notify inspection services. The fact that these extra hours do not require compensatory rest and benefit from a favourable tax and social security regime, makes this legal ground for extra hours that are particularly attractive for employees and practical for employers. Companies should critically evaluate their working time practices to maximize the benefits of combining voluntary hours with accordion schedules. 

The simplification of signing a one-off agreement, rather than having to renew the agreement every six months, can be welcomed as well. 

The restriction of the voluntary overtime regime to full-time and part-time workers who have worked part-time for at least 3 years is, on the other hand, unfortunate.

Even if requesting extra work from part-time workers is only possible in accordance with CBA no. 35, to date there is no prohibition for part-time workers to perform extra hours (except for employees working part-time in the context of time credit or thematic leave). Imposing different regulations based on part-time work tenure seems arbitrary and undermines the usefulness of the voluntary overtime system.

Abolition of minimum weekly working time

The government agreement also includes the removal of the requirement that the minimum weekly working hours must be one-third of the full-time working schedule. 

The full potential of this measure to increase flexibility will however not be achieved since the agreement explicitly states that each working period should still cover at least 3 hours, and that on-call contracts remain prohibited.

Abolition of the requirement to list all working time schedules in the work rules

The requirement to include all working time schedules in the work rules will be lifted, provided that flexibility boundaries are clearly defined. This is mainly an administrative simplification without further practical impact.

The requirements relating to applicable notice periods in case of changes to the applicable variable schedule remain in force in order to avoid any impact on the necessary predictability of the working hours. 

Ending the ban on night work

Night work, which is defined as work between 20:00 and 6:00 is generally prohibited. However, there are exceptions for certain organisations where night work is common and related to the nature of the activity such as hotels, electricity producers, medical care providers, and e-commerce distribution companies. Additionally, activities that require successive shifts or permanent operations due to economic imperatives may also be permitted. Despite these exceptions, most companies are still subject to the general rule. The government agreement foresees that this prohibition will now be lifted. 

Furthermore, the agreement states that, night work in distribution and related sectors, like e-commerce will only start as of 24:00 instead of 20:00, without any loss of purchasing power for employees currently already working between 20:00 and 24:00. Procedures will be simplified, and existing night work premiums as laid down in collective bargaining agreements in various sectors and companies will remain in effect.

Abolishing this prohibition undoubtedly increases flexibility for employers. The question is whether the simplified night work procedures will be applicable to all employers, or only to the distribution and related sectors (for which a simplified procedure already applies). Under the current rules, if a trade union delegation exists, employers must negotiate a collective bargaining agreement with all represented trade unions to implement night work, which is very burdensome and puts employers in a very tight negotiation spot. Simplifying the procedure for all employers could therefore certainly boost the success rate of this measure.

Conclusion

The government agreement claims that it will modernise labour law. It takes appropriate steps in this direction with measures such as implementing accordion schedules, increasing the number of voluntary overtime hours that can be paid gross for net, eliminating the requirement for a weekly closure day, and reducing the administrative burden. It is in the companies' best interest to evaluate whether they can optimise their working time practices once these new measures are enacted into legislation.