Today a new law setting out temporary support measures in response to the energy crisis was published in the Belgian State Gazette. This law seeks to provide both citizens and organisations with various measures to face the current energy crisis. Here we explore the measures that have an impact on the employment relationship, that is: temporary unemployment for energy-intensive companies and its possible consequences on pension accrual and the postponement of payment of income taxes and withholding taxes on professional income.
The law introduces a special system of temporary unemployment for energy-intensive companies, which exists alongside traditional economic unemployment systems and is subject to a specific procedure. It is a temporary system that will apply from 1 October to 31 March 2023. This period may be extended by Royal Decree.
A company is considered an energy-intensive company if it meets one of the following non-cumulative conditions:
An employer who wishes to make use of this scheme (temporary employment energy) for blue-collar and/or white-collar workers because of the energy crisis must make a declaration on honour using a C106A-Energy form to the National Employment Office (NEO) that the company meets at least one of these conditions. This must be done at least five calendar days before notification of the first day of unemployment.
In addition, the NEO, the employees concerned (via posting or individual notification) and the relevant consultation body (works council or if there is none, the trade union delegation) must be notified about the suspension of employment contracts and the economic reasons justifying it three calendar days before the first day of unemployment. The NEO must also be notified monthly about the first day of unemployment in that month.
In the event of a lack of work due to economic reasons, the employment contract can be fully or partially suspended. Full suspension applies for a maximum of four weeks. When the employment contract is partially suspended for a maximum period of three months, employees must work fewer than three days a week or fewer than one week every two weeks. After expiry of the maximum period of four weeks full suspension or three months of partial suspension, a new application can be submitted immediately. The employee concerned must not perform a compulsory work week.
An unemployed employee is entitled to an allowance from the NEO equal to 70% of his or her salary (capped at EUR 3,075.04) and a supplement at the expense of the employer or the Social Security Fund of EUR 6.22 for each day not worked.
Please note that the NEO can recover gross unemployment allowances that were wrongfully paid out from any employer who wrongfully uses this scheme. In this case, the employer will also have to pay its employees the normal wage for these days.
As in the case of Covid-19 temporary unemployment, the temporary energy crisis support programme provides for quasi-identical measures to prevent the acquisition of occupational pension rights and occupational risk cover being suspended during the period of temporary unemployment.
Again, the principle of automatically maintaining occupational pension right acquisition and occupational risk cover (death, incapacity for work) applies. The contributions due are calculated as if the employment contract had not been suspended. This principle of automatic maintenance proceeds without any changes (to tariff conditions, for example) and without formalities. Moreover, it does not require any (immediate) amendment of the pension scheme (see below). This automatic maintenance of occupational pension rights can also be integrated into the solidarity component of a social occupational pension plan.
As with the similar Covid-19 temporary unemployment measures, the employer or sectoral organiser can still suspend the occupational pension rights and risk products via an opt-out from the statutory regime. An opt-out is not possible for death cover which must be retained as applicable on the eve of temporary unemployment energy. The employer or sectoral organiser must inform the insurer or the pension fund (i.e. the pension institution) of its opt-out choice in good time (see procedure).
The law also provides for the possibility, at the organiser’s simple request, to postpone payment of premiums or contributions (both employer and personal contributions) until 31 March 2023 (without the possibility of dispute). If the organiser wishes to make use of this, it must submit all useful relevant information to the pension institution. Please note, deferral of payment of personal contributions means that after the period of temporary unemployment, they must be paid in one lump sum and thus deducted from the employees’ net wages (together with the usual personal contribution for the month in question).
The pension institution (insurer or pension fund) must inform the provider (employer or sectoral organiser) about the impact of temporary unemployment energy on risk coverage, as well as the possibility of deferring contributions, the possibility of converting this into a solidarity benefit, the possibility of opting out and the employer/sectoral organiser’s obligation to inform its members. Within 30 days of receiving this information or within 30 days after the employer first uses temporary unemployment energy, the employer or sectoral organiser must let the pension institution know if it chooses to opt out.
The maintenance of occupational pension rights and risk coverage, as well as deferral of contributions, follow directly from the law. To this end, the procedure to amend the pension or solidarity scheme does not have to be followed. However, the pension scheme (and/or, if applicable, the solidarity scheme) must be formally amended by 31 December 2023 at the latest. Before then, however, the employer or sectoral organiser must inform its members about the retention or suspension of the occupational pension rights and/or risk coverage.
Retroactive entry into force
These provisions entered into force retroactively on 15 September 2022 and are valid until 31 March 2023.
Finally, irrespective of whether the employer is an energy-intensive business or not, a postponement of the payment of both withholding tax on professional income and income tax is granted.
In normal times, employers are required to pay withholding tax on professional income monthly or quarterly before the 15th of the month following the expiry of the period covered by the declaration. This period is extended by two months for monthly filers for income associated with the months of November and December 2022. Payment for the fourth quarter of 2022 will also be postponed for two months for quarterly filers.
For the tax year 2022, income taxes (personal income tax, corporate income tax, legal entities tax and non-resident tax) will not become payable after two months from the sending of the tax assessment notice, as in normal times, but only after four months, i.e. until 31 October 2023.
When companies experiencing decreasing work volumes as a result of the energy crisis meet one of the conditions to be considered ‘energy-intensive’, they can make use of the special temporary unemployment measures described above.
Regarding the group insurance or occupational pension plan, the pension institution (insurer or pension fund) must inform employers and sectoral organisers of the measures as soon as possible. Subsequently, the employer or sectoral organiser must decide whether it wishes to refrain from automatic retention (default option) and opt out, and if so, must notify the pension institution within 30 days. The employer or sectoral organiser must also inform its members about this within a reasonable time.
All employers are granted a two-month postponement of payment of income tax and withholding tax on professional income of two months each.
At the time of writing, the measures will apply until 31 March 2023.
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