Holidays with Pay Convention (Revised), 1970 (No. 132) - Belgium (Ratification: 2003)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 2 of the Convention. Scope of application. The Committee notes with interest the repeal of section 18 of the Royal Order of 28 November 1969 that excluded certain domestic workers from the social security scheme, so that such workers now enjoy the right to annual holidays with pay. The Committee also notes that the Government is currently developing a social security scheme specifically for volunteer firefighters. The Committee notes, moreover, that the Government has not provided information on the legislation on annual holidays applicable to the staff of public establishments providing health care, prevention or hygiene services. The Committee requests the Government to provide information on the effect given to the planned social security scheme for volunteer firefighters. Moreover, it once again requests the Government to provide information on the legislation applicable to the staff of public establishments providing health care, prevention or hygiene services and to indicate the extent to which effect has been given to the Convention in respect of such staff.

Article 6(2). Exclusion from paid annual holidays of periods of incapacity for work resulting from sickness. The Committee notes that the provisions are still in force which, include in the annual holiday period the days of incapacity for work due to sickness occurred during the annual holiday period. The Government indicates in its report that discussions on a possible reform to the regulations on annual holidays for the private sector have been held in the National Labour Council since September 2013. The Committee requests the Government to provide information on any developments related to bringing the national legislation into line with this Article of the Convention.

Article 12. Impossibility for a worker to take holidays. In its previous comments, the Committee noted that section 67 of the Royal Order of 30 March 1967 provided for the cancellation of the holiday entitlement as of 31 December of the year in which it accrued, meaning that it would be impossible for a worker who had received holiday pay without actually taking the respective holiday to take that holiday subsequently. In its reply, the Government indicates that this provision is intended to meet European requirements to grant workers four weeks of holiday during the same calendar year. Therefore, allowing carry-over from one year to another would result in preventing workers from being able to take their four weeks of holiday. In this regard, the Committee recalls that, in several recent judgments (Case C-350/06 and Case C-78/11), the Court of Justice of the European Communities reaffirmed the inalienable character of workers’ rights to annual holidays with pay and clearly established that any worker who is unable to take a holiday does not lose his or her holiday entitlement, even if the carry-over period has expired. The Committee requests the Government to ensure that its law and practice are in conformity with this Article of the Convention and to provide information in this regard.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 2 of the Convention. Scope of application. The Committee notes the detailed information supplied by the Government in its report and the attached documentation. It notes in particular the explanations concerning the categories of workers excluded from the system of annual holidays for private sector workers (legal basis, conditions and prior consultation of the employers’ and workers’ organizations concerned). The Committee requests the Government to state in subsequent reports, in accordance with Article 2(3) of the Convention, the position of its law and practice with respect to these categories of workers, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories.

With regard to the public sector, the Committee notes the Government’s explanations concerning the legal framework establishing the system of holidays for the federal administrative public service, autonomous public enterprises, police services and military personnel. It further notes the Government’s indication to the effect that persons employed in public establishments dispensing health-care, disease prevention or hygiene services come under many different employers and there are no uniform legal provisions concerning annual holidays for them. The Committee requests the Government to supply further information on this point and, if applicable, to send copies of any regulations or collective agreement applicable to the staff of public establishments dispensing health-care, disease prevention or hygiene services.

Article 6(2). Exclusion from paid annual holiday of periods of incapacity for work resulting from sickness. The Committee notes section 68(1) and (2)(b) of the Royal Order of 30 March 1967 determining the general procedures for the implementation of legislation relating to the annual holidays of wage workers, which states that days not worked owing to sickness or accident, whether occupational or otherwise, cannot be counted as part of annual holiday unless the cause of such sickness or accident arises during the holiday. The Committee recalls that Article 6(2) of the Convention states that periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed by the Convention, namely three weeks. While recognizing the flexibility in determining the conditions for application of this provision (for example, the requirement for a medical certificate), the Committee does not consider that this provision may have a suspensive effect, allowing the public authority to prevent its application in certain situations. Moreover, with regard to the public sector, section 12(3) of the Royal Order of 19 November 1998 concerning leave or absence granted to staff in government service states that the annual holiday with pay shall be suspended in cases where the worker is granted sick leave or is temporary leave of absence owing to sickness. The Committee therefore requests the Government to take the necessary steps to give full effect to this Article of the Convention, for example by adopting measures with regard to the private sector similar to those laid down by the Royal Order of 19 November 1998 applicable to the public sector.

Article 7(2). Time of payment of holiday bonus. The Committee notes the Government’s explanations concerning the definition of conditions for payment of the holiday bonus and, in particular, the reasons justifying the payment of holiday bonus before 2 May each year.

Article 11. Termination of employment. The Committee notes the information provided by the Government concerning the payment of the holiday bonus in the event of termination of employment. With regard to manual workers, the Committee notes the Government’s indication to the effect no provision is made for a holiday bonus in the event of termination of employment, the holiday bonus being paid to workers at the time they take their holiday and, in cases where holidays are divided into parts, at the time of their main holiday. The Committee requests the Government to indicate the manner in which it is ensured that, in accordance with this Article of the Convention, any worker who has not taken the holiday to which he or she is entitled at the time of termination of employment receives a holiday of proportionate length, compensation or an equivalent holiday credit.

Article 12. Impossibility of taking a holiday. Further to its previous comment relating to section 67 of the Royal Order of 30 March 1967, the Committee notes the indication to the effect that the aim of this provision is not to compensate an employee who does not take his or her holidays but to ensure that the holiday bonus is paid no later than 31 December of the year in which the holiday entitlement accrues in cases where it is impossible for the worker, further to events beyond his or her control, to take a holidays (for example, in the event of a long period of sickness). The Committee understands that this provision – since it provides that the holiday entitlement shall be cancelled as of 31 December of the year in which the holiday entitlement accrues – means that it would be impossible for a worker who had received the holiday bonus without actually taking the holiday to take that holiday subsequently. In this regard, the Committee refers to the judgement of the Court of Justice of the European Communities issued on 20 January 2009 (Case C-350/06), in which the Court reaffirmed the inalienable character of workers’ right to annual holidays with pay – with explicit reference to the relevant provisions of Convention No. 132 – and clearly established that any employee who was unable to take a holiday cannot have his or her holiday entitlement cancelled, even if the carry-over period has been exceeded. The Committee requests the Government to provide clarification on this point.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Scope of application. The Committee notes the detailed information supplied by the Government in its report and the attached documentation. It notes in particular the explanations concerning the categories of workers excluded from the system of annual holidays for private sector workers (legal basis, conditions and prior consultation of the employers’ and workers’ organizations concerned). The Committee requests the Government to state in subsequent reports, in accordance with Article 2(3) of the Convention, the position of its law and practice with respect to these categories of workers, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such categories.

With regard to the public sector, the Committee notes the Government’s explanations concerning the legal framework establishing the system of holidays for the federal administrative public service, autonomous public enterprises, police services and military personnel. It further notes the Government’s indication to the effect that persons employed in public establishments dispensing health-care, disease prevention or hygiene services come under many different employers and there are no uniform legal provisions concerning annual holidays for them. The Committee requests the Government to supply further information on this point and, if applicable, to send copies of any regulations or collective agreement applicable to the staff of public establishments dispensing health-care, disease prevention or hygiene services.

Article 6, paragraph 2. Exclusion from paid annual holiday of periods of incapacity for work resulting from sickness. The Committee notes section 68(1) and (2)(b) of the Royal Order of 30 March 1967 determining the general procedures for the implementation of legislation relating to the annual holidays of wage workers, which states that days not worked owing to sickness or accident, whether occupational or otherwise, cannot be counted as part of annual holiday unless the cause of such sickness or accident arises during the holiday. The Committee recalls that Article 6(2) of the Convention states that periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday with pay prescribed by the Convention, namely three weeks. While recognizing the flexibility in determining the conditions for application of this provision (for example, the requirement for a medical certificate), the Committee does not consider that this provision may have a suspensive effect, allowing the public authority to prevent its application in certain situations. Moreover, with regard to the public sector, section 12(3) of the Royal Order of 19 November 1998 concerning leave or absence granted to staff in government service states that the annual holiday with pay shall be suspended in cases where the worker is granted sick leave or is temporary leave of absence owing to sickness. The Committee therefore requests the Government to take the necessary steps to give full effect to this Article of the Convention, for example by adopting measures with regard to the private sector similar to those laid down by the Royal Order of 19 November 1998 applicable to the public sector.

Article 7, paragraph 2. Time of payment of holiday bonus. The Committee notes the Government’s explanations concerning the definition of conditions for payment of the holiday bonus and, in particular, the reasons justifying the payment of holiday bonus before 2 May each year.

Article 11. Termination of employment. The Committee notes the information provided by the Government concerning the payment of the holiday bonus in the event of termination of employment. With regard to manual workers, the Committee notes the Government’s indication to the effect no provision is made for a holiday bonus in the event of termination of employment, the holiday bonus being paid to workers at the time they take their holiday and, in cases where holidays are divided into parts, at the time of their main holiday. The Committee requests the Government to indicate the manner in which it is ensured that, in accordance with this Article of the Convention, any worker who has not taken the holiday to which he or she is entitled at the time of termination of employment receives a holiday of proportionate length, compensation or an equivalent holiday credit.

Article 12. Impossibility of taking a holiday. Further to its previous comment relating to section 67 of the Royal Order of 30 March 1967, the Committee notes the indication to the effect that the aim of this provision is not to compensate an employee who does not take his or her holidays but to ensure that the holiday bonus is paid no later than 31 December of the year in which the holiday entitlement accrues in cases where it is impossible for the worker, further to events beyond his or her control, to take a holidays (for example, in the event of a long period of sickness). The Committee understands that this provision – since it provides that the holiday entitlement shall be cancelled as of 31 December of the year in which the holiday entitlement accrues – means that it would be impossible for a worker who had received the holiday bonus without actually taking the holiday to take that holiday subsequently. In this regard, the Committee refers to the judgement of the Court of Justice of the European Communities issued on 20 January 2009 (Case C-350/06), in which the Court reaffirmed the inalienable character of workers’ right to annual holidays with pay – with explicit reference to the relevant provisions of Convention No. 132 – and clearly established that any employee who was unable to take a holiday cannot have his or her holiday entitlement cancelled, even if the carry-over period has been exceeded. The Committee requests the Government to provide clarification on this point.

Part V of the report form. Practical application. The Committee notes the detailed information supplied by the Government. It requests the Government to continue to supply general information on the manner in which the Convention is applied in practice, including, for example, extracts from reports of the inspection services, information on the number of workers covered by the legislation, and the number of infringements reported with respect to annual holidays with pay.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes with interest the Government’s first report and the very detailed information it contains. It wishes to receive further information on the following points.

Article 2 of the Convention. Scope of application. Private sector. The Committee notes that, according to the information communicated by the Government in its report, the main categories of workers not covered by the legislation on annual holidays in the private sector are the following: professional sportsmen and women; professional cyclists; childcarers; casual workers (under certain conditions); working students (under certain conditions); domestic staff not living in their employers’ homes (under certain conditions); and volunteer firefighters (under certain conditions). The Committee requests the Government to:

-  indicate the provisions under which these categories of workers are excluded from the system of annual holidays for private sector workers;

-  indicate to what extent the organizations of employers and workers concerned were consulted with regard to this exclusion;

-  indicate under which conditions casual workers, working students, domestic staff not living in their employers’ homes and volunteer firefighters are excluded from this system (as the Government’s report states that, for these categories of workers, the exclusion only applies "under certain conditions");

-  indicate the legislation applicable to these workers concerning annual holidays.

Public sector. The Committee notes that the Act of 14 December 2000 establishing certain aspects of working time arrangements in the public sector applies to public sector workers and their employers, with the exception, among others, of establishments carrying out industrial or commercial activities and those which provide health, disease prevention or hygiene services. It also notes that Chapter III of the above Act, which covers annual holidays, is not applicable to members of staff subject to the Act of 7 December 1998 organizing an integrated police service nor to military personnel, and that the King determines the minimum requirements relating to working time arrangements to guarantee them a level of protection equivalent to that enjoyed by other workers covered by the Act of 14 December 2000. The Committee requests the Government to:

-  indicate the legal provisions governing the annual holidays of public sector workers employed in establishments carrying out industrial or commercial activities, or providing health, disease prevention or hygiene services;

-  indicate whether a Royal Order regulates the annual holidays of personnel subject to the Act of 7 December 1998 organizing an integrated police service, and of military personnel, and, if so, to provide a copy.

Moreover, the Committee requests the Government to provide information on the application of Articles 4-11 of the Convention to public sector workers.

Article 7, paragraph 2. Time of payment of holiday pay. The Committee notes that section 23(1) of the Royal Order of 30 March 1967 determining the general measures for the application of the laws on annual holidays of employees provides that holiday pay is paid to the manual workers at the time when they take their holidays and, in the case of holidays that are divided into two or more periods, upon the occasion of their main holiday, at the earliest on 2 May of the year in which the holiday is taken. The Committee requests the Government to indicate the measures taken to ensure that manual workers who take their annual holidays before 2 May receive their holiday pay before the beginning of the holiday, as required by this Article of the Convention. Furthermore, the Committee notes that under the terms of section 23(2) of the Royal Order of 30 March 1967, in the case of manual workers employed in enterprises falling within the authority of the Joint Commission of the Diamond Industry and Trade, the holiday pay for the fourth week of holidays is paid during that fourth week. The Committee requests the Government to indicate whether this particular rule is the result of a collective agreement applicable to the diamond industry and trade.

Article 11. Termination of the employment relationship. The Committee notes that, according to the information provided by Government in its report, in the case of termination of the employment relationship, workers who have completed the minimum period of service during the period in which entitlement to holidays is accrued, benefit from the holidays during the year in which they are due once working for a new employer. The Committee requests the Government to indicate the provisions establishing this rule. The Government is also invited to specify the provisions determining the conditions for the provision of holiday pay to manual workers in the case of termination of the employment relationship.

Article 12. Cases in which the worker is unable to take holidays. The Committee notes that, in accordance with section 2(3) of the Coordinated Acts of 1971 respecting workers’ annual holidays, the right to holidays is acquired, notwithstanding any agreements to the contrary and workers may not forgo the holidays to which they are entitled. It notes, however, that under the terms of section 67 of the Royal Order of 30 March 1967, when a worker is unable to take his or her holidays, the holiday pay is paid to him or her on the normal date of the holidays set within the enterprise where he or she was last employed and at the latest by 31 December of the year which follows the year in which he or she became entitled to the holiday. The Committee requests the Government to provide more detailed information on the application of this provision in practice and on the measures taken to ensure that the worker cannot forgo his or her annual holiday in exchange for compensation (in this instance, holiday pay).

Part V of the report form. The Committee notes the detailed statistical information communicated by the Government, in particular with regard to the number of inquiries carried out, and requests it to continue to provide general indications on the manner in which the Convention is applied in practice.