Four-day & alternating work week: not a mere discretionary possibility of the employer
As of 20 November 2022, employees can request a four-day or alternating work week, as a result of the Labor Deal. Can only employees, whose employer offers a four-day and/or alternating work week in their work rules or a collective bargaining agreement, apply for this or is this not a pre-requisite?
Four-day and alternating work week
To enhance the work-life balance of employees, the Labor Deal has implemented two new working regimes: the four-day work week and the alternating work week.
A four-day work week allows the employee to perform their full-time job in four days per week instead of five days per week.
In the context of an alternating work week, the full-time employee can work according to a cycle of 2 consecutive weeks. The work performed in the first week will be compensated by the work in the second week to observe the average normal working time. For example, the employee works 44 hours in week 1 and 32 hours in week 2, so the average weekly working time of 38 hours is still complied with.
The employee must submit a preliminary written request to the employer. If the employer refuses this, they need to motivate their decision in writing within one month.
The labor deal states that the work rules “may allow” a four-day and/or alternating work week. This raises the question as to whether it follows that the employer is entitled to decide whether to offer the possibility of a four-day and/or alternating working week to their employees.
In other words:
- if the employer refuses to implement the(se) working regime(s) in the work rules or by means of a collective bargaining agreement (because they do not want to apply it within the company), does this mean that the employee does not have the possibility to ask for a four-day or alternating work week at all?
- can the employee even submit a request if the four-day and/or alternating work week has not yet been formally implemented by means of the work rules or a collective bargaining agreement?
Point of view of the authorities
Regarding the alternating work week (only), the preparatory works of the labor deal already indicated that the system can be implemented in the work rules, either prior to the request of an employee, or as a result of it. An existing framework in the work rules is thus not a preliminary condition to allow an employee to request for an alternating work week.
The Federal Public Service for Employment, Labor and Social Dialogue has now confirmed to us that this also applies to a four-day work week. Even if a four-day or alternating work week has not yet been implemented in the work rules or through a collective bargaining agreement, the employee has the right to submit a request to participate in a four-day or alternating work week schedule. The employer can only refuse in a motivated way.
This also implies that if an employer has already implemented a four-day and/or alternating work week prior to the request of the employee, the latter is not restricted to the modalities that are yet included in the work rules or a collective bargaining agreement.
An employee is entitled to request a four-day or alternating work week, even if the framework in this respect has not yet been implemented in the work rules or by means of a collective bargaining agreement. The employer can thus not merely refuse a request based on the decision to not apply it within the company, unless it can be duly motivated. KPMG Law can assist you with both the implementation of a four-day and/or alternating work week as with the motivation of a refusal.
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