Deadline for harmonising employment statutes

A new ruling by the Constitutional Court will force the Belgian legislator and social partners to harmonise the employment statutes for blue-collar and white-collar workers by 2013, 20 years after harmonisation was first proposed. The present laws date back to the 19th century and discriminate against blue-collar workers. The new government has promised to take up the challenge, and legislation passed in 2011 is a small step towards further equality in dismissal procedures.

Background

In a ruling of 7 July 2011, the Belgian Constitutional Court (Grondwettelijk hof) gave the Belgian legislator two years to abolish the difference in employment statutes between blue-collar workers (arbeiders) and white-collar employees (bedienden), because it violates constitutional rules on discrimination and equal treatment.

Two employment statutes

Under Belgian employment law, personnel are classified as either blue- or white collar workers, and each type of employment is governed by separate statutes. The difference dates back to the 19th century when so-called blue-collar workers were mainly manual labourers, while white collar workers had higher-ranked clerical or administrative tasks. The statutory differences between the two relate to labour law areas such as holiday entitlement, overtime pay, sick-leave and the notice required for dismissal or redundancy. Blue-collar workers can be sacked at shorter notice.

Court ruling fixes deadline

The Constitutional Court has given the legislator two years (until 8 July 2013) to end this discrimination and harmonise the legal positions of both types of workers. One of its first demands is that the rule that deprives only blue-collar workers of pay for their first day of sick-leave should be abolished.

Almost 20 years ago, on 8 July 1993, the court declared that treating blue-collar and white-collar workers differently because of the nature of their work was unreasonable, and had called then for the legislator to harmonise their legal position.

The court has now indicated that the measures taken since then by the legislator and the social partners have been insufficient, despite recently adopted laws on further harmonisation of the two employment statutes.

Harmonisation steps taken in 2011

The national social partners have been discussing these issues without agreement at the bi-annual intersectoral negotiations. However, the government decided in 2011 to go ahead with some revised arrangements, enacting new legislation that mainly revises the rules on dismissal (Law of 12 April 2011).

New notice periods in case of dismissal

From 1 January 2012, new employment contracts have to acknowledge the new dismissal notice periods. These periods are still calculated on the basis of seniority acquired at the time the notice period commences and, under certain conditions, temporary agency work conducted for the same job and employer is included in this seniority period.

However, when an employer dismisses a blue-collar worker, the new notice period must be given – about 15% longer than previous notice periods. For example, blue-collar workers with four to six years’ seniority will now have a notice period of 40 calendar days instead of 35. However, when a blue-collar worker resigns the notice period is unchanged.

There are no changes to the notice period for white-collar employees with an annual gross salary of less than €30,535 (amount of 2011). For those whose gross salary is above this figure, fixed-term notice periods have been introduced. Currently, the dismissal notice period increases by 30 days for each year of seniority, but from 2014 this will be reduced to 29 calendar days. Also, fixed terms are set for notice periods after employee resignations (see details on termination of employment (in Dutch)). Employees earning more than €61,071 per year may still negotiate a specific dismissal period when their contract is agreed.

Special severance payment provision for blue-collar workers

A special severance payment provision has been introduced for blue-collar workers to replace the crisis bonus, which was due to come to an end on 31 December 2011. Unlike the crisis bonus, the special severance payment is paid entirely by the National Employment Office (RVA-ONEM).

Manual workers whose employment contracts run from 1 January 2012, and whose contracts are terminated by their employer with a notice period, will be entitled to a special severance payment. The amount depends on the worker’s seniority:

• less than five years: €1,250;

• five to 10 years: €2,500;

• more than 10 years: €3,750.

Part-time workers will receive severence payments based on a proportion of these payments that reflects their average working hours and years of service, although there will be exceptions. As was the case with the crisis bonus, the severance payments will be tax free, as provided for in the draft bill of 6 April 2011 to amend the Income Tax Code 1992 regarding work bonuses and compensation in lieu of notice (Fiscal Provisions Bill).

Temporary unemployment for white-collar workers

The Act implementing the Interprofessional Agreement (IPA) extended the crisis bonus and temporary unemployment provisions for white-collar workers under the same conditions until 31 December 2011. Temporary unemployment for white-collar workers becomes a definitive reality from 2012. A business in difficulties can lay off white-collar workers by suspending their employment contracts (for a maximum 16 weeks a year) or by introducing a part-time work arrangement (two days a week over a period of up to 26 weeks a year). In 2012, the conditions for companies seeking to declare that their business is in difficulties will be eased. Companies will have to demonstrate:

• a fall in turnover, production or orders compared with the same quarter in 2008 of at least 10%, instead of the current 15%;

• the 20% condition for redundancy among blue-collar workers is dropped to 10%.

As before, the possibility of temporary layoffs for white-collar workers has to be laid down in a collective agreement or business plan and the employer must submit a formal application to the RVA-ONEM, while also informing employees of its plans.

Commentary

The new Federal Government that took office in December 2011 has taken up the challenge set by the Constitutional Court to reach an agreement with the social partners on the completion of harmonisation of Belgium’s employment statutes. Should this process not be completed by the Constitutional Court’s deadline of 8 July 2013, there is a significant chance that after that date blue-collar workers would be able to go to court and successfully claim the same treatment as white-collar employees.

Guy Van Gyes, HIVA – KU Leuven