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Clients commend Reliance's "very creative" and "hands-on" approach. Others describe the team as "proactive, reactive and easy to reach." Founding partners Koen De Bisschop and Edward Carlier are ranked lawyers. Reliance comprises 19 lawyers, making it one of the largest labour & employment teams in the Belgian market. Reliance belongs to the international platform of Littler (www.littler.com), the world’s largest employment and labour law practice, with more than 1,500 attorneys in 83 offices worldwide. ■
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After concluding to the unlawfulness of UberPop in 2015, the commercial court of Brussels rendered a decision in December 2018 casting some doubt as to the lawfulness of UberX. The combination of both decisions lead to differing interpretations as to whether UberX and/or its drivers are subject to the legal framework on taxi services, the application of which would jeopardize the very heart of UberX' business model. In 2018, 24 taxi companies filed a new claim against Uber and 9 Uber drivers to obtain a cease and desist order under penalty of 1,000,000 EUR per day of infringement. Early 2019, the commercial court turned down this claim by confirming that neither UberX nor the drivers are subject to the legal framework on taxi services. The court concluded that the drivers must abide by all obligations pertaining to the renting of a car with driver, a distinct and less burdensome legal framework than that applying to taxi services, and concluded that the drivers are not in violation of any of their legal obligations (with the exception of one driver, whose car was considered below legal standards). The claimants also asked the court to confirm that the drivers are in fact employees of Uber as opposed to independent contractors. The court turned down this claim by considering that the drivers choose when and where they work, choose for how long they drive, can take or ignore trips, own or rent their own cars and can complete other work or jobs as it suits them. This decision, if confirmed in appeal, could protect Uber against claims from its drivers working in Belgium arguing that they are owed employee benefits such as minimum wage and holiday pay or against claims by the social security administration for payment of employer and employee social security contributions on the drivers' income. It remains to be seen whether this decision could also protect other companies in the so-called gig economy against said claims. ■
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In a recent post, our colleagues of Clint Littler (The Netherlands) addressed the question whether the European Works Council (EWC) had to be informed before or after the Dutch works council (http://www.clintlegal.com/blog/ewc-not-entitled-to-pull-rank/). This is also a relevant question under Belgian law, but unfortunately the answer is not clear. Looking at the European directive on which the EWC is based, the procedure for information and consultation of the EWC and the interactions between the EWC and national employee representative bodies can be regulated in the agreement governing the establishment and operation of the EWC. But what if this agreement does not deal with the issue? Article 45 of the Belgian national collective bargaining agreement (CBA) No. 101 stipulates that in such a case, the process of information and consultation of the EWC and the national employee representative bodies should be followed if decisions are contemplated that will probably entail important changes to the work organisation or the employment contracts. This does however not say anything about the timing. In the – non-binding – comments under this article, it is specified that the process should take place “simultaneously” at the level of the EWC and the national employee representative body, bearing in mind the roles and competences of these bodies. To complicate matters further, article 11 of CBA No. 9, which deals with the role of the Belgian works council in relation to important structural changes, stipulates that the Belgian works council needs to be informed and consulted before any announcement (i.e. before the EWC?). Belgian law therefore does not provide a clear order in which to consult the EWC and the national employee representative bodies. Starting with the Belgian works council and shortly after informing the EWC is an option to reconcile all rules, but there can certainly be alternatives depending on the matter and the practices existing within the corporate group. A Belgian court ruling similar to the one referred to by Clint Littler would therefore not come as a surprise… ■
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Under Belgian law compensation in lieu of notice is computed on the employee's annual salary, which includes any contractual or statutory salary item. In a recent decision, the Brussels' employment tribunal (French-speaking section) held that a discretionary retention bonus is not part of the salary serving as computation basis of the compensation in lieu of notice. In the case at hand, the employee claimed to include the retention bonus (approximately 100,000 euros inclusive of holiday pay), which was awarded and paid less than 12 months prior to employment termination, into the computation basis of the compensation in lieu of notice, inflating the latter with another 220,000 euros. The employment tribunal held that such discretionary retention bonuses are not to be considered as salary opening additional severance entitlements. ■
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Reliance partner Edward Carlier spoke at a seminar at the San Francisco City Club. The seminar, organized by Littler of which Reliance is a member, inter alia covered the results of the 2018 Littler Annual European Employer Survey. The panel of speakers commented on the findings of this survey for Belgium, Germany, France, UK, Italy, Norway and The Netherlands. ■