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Employee termination (not) more expensive in 2019?

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By 1 January 2019 at the latest, all sectors should have adopted a sectoral collective bargaining agreement (CBA) that ensures that for employees who are entitled to a notice period of at least 30 weeks, one third of the termination package consists of measures increasing the employee’s employability. The other two thirds of the severance package remain either the notice period (which should in principle be performed) or a payment in lieu of notice (corresponding to the salary for the notice period). The notice period (or the corresponding payment in lieu of notice) must however remain at least 26 weeks.Belgian law has provided a sanction in case of non-compliance, i.e. the payment of an additional social security contribution of 3% for employers and an additional withholding of 1% for employees on one third of the salary for the notice period or the compensation in lieu of notice (to the extent that one third of the notice is not at least equal to 13 weeks, it will be due on the difference between the notice and 26 weeks). Because to date, not a single sector has adopted a CBA (and it is therefore not possible to comply), dismissing an employee who is entitled to a notice period of 30 weeks, may therefore become more expensive. In our view and contrary to what seems to be copied in several legal publications, it can be argued that this sanction is not due to the extent that the employees do not receive their full termination package, e.g. because of the deduction of a contribution for (mandatory) outplacement. Furthermore, it is rumoured that the social security administration would not be applying this sanction if there is not yet a sector level CBA. ■
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