by Stefan Nerinckx, Partner, Fieldfisher
A year and a half after the ‘harmonization’ of blue and white collar workers, the time has come for an evaluation.
When the Constitutional Court ruled in July 2011 that the legal distinction between blue and white collar workers was unconstitutional, its judgment related only to the first day of sick leave and to notice periods. However, the Court did say that the differences in treatment between blue and white collar workers in other areas also needed to be eliminated (e.g payment of salary, annual vacations, work disability, suspension of employment contracts, in-house social elections, etc.).
Sticking points
Though notice periods should, in principle, have been harmonized since January 1, 2014, there are still exceptions in various sectors of industry. Moreover, there is still a lack of clarity on what constitutes manifestly unfair dismissal; the law says that compensation is due in cases of manifestly unfair dismissal equal to three to 17 weeks’ pay (CBA nr. 109). But what criterion should be used? When is it three weeks and when 17? The court has to decide, thus resulting in further legal uncertainty owing to the disparate rulings each court is liable to hand down.
Abolition of the trial period seems like another stumbling block. Employers as of yet do not have enough knowledge of the possible alternatives like fixed-term contracts, individual vocational training, etc., especially for blue collar and lower-skilled white collar workers with mostly operative tasks. It looks as though the re-introduction of the trial period or an alternative will only be looked into towards the end of this parliament’s session.
Another sticking point is the rules on contractual termination clauses. New notice periods have applied since January 1, 2014. It is not clearly determined by law how the calculation needs to be done for people with contractually stipulated notice periods who are fired now and had already acquired seniority before January 1, 2014. Since January 2014, the rule for employees earning an annual maximum of €32,254 gross has been a notice period of three months per started five-year period of seniority until December 31, 2013 included, or the contractually agreed notice period. For employees earning more than that figure, the letter of the law takes no account of a contractually agreed notice. In other words, in principle, the rule is one month per year’s seniority. There is as yet no case law on this. The Federal Public Service blithely says that there is no problem, but the law leaves much to be desired in terms of clarity.
The requirement to motivate the dismissal is positive; it has meant that corporate HR departments have continued to improve in their professional approach. Motivation of the dismissal however is still not an obligation: the motivation only has to be given when asked for by the employee. But employers should ideally give reasons when asked.
What about the 2016 in-house social elections?
The trade unions are gradually getting ready for the 2016 in-house social elections. The question is whether the difference between blue and white collar workers continues to be tenable in this area as well. I take the view that there are arguments for labeling the distinction as unconstitutional. Separate ballot colleges for blue collar workers and white collar workers, different lists based only on the difference between blue and white collar workers, the list of executives (kaderleden/cadres) which can only consist of white collar workers, and so on – these differences cannot be reasonably justified on the basis of any objective criteria! Corporations will have to brace themselves for legal uncertainty and possible court action in this respect.
Too expensive
As if that weren’t enough, then we have this, finally. A recent survey shows that Belgium’s dismissal rules are still too expensive compared to other EU countries; this affects how competitive our businesses are. By comparison, in the Netherlands, when an employment contract is terminated by the employer during the first 24 months as of July 1, 2015, no compensation needs to be paid in lieu of notice and no notice period needs to be worked either. Furthermore, the termination indemnity (after the 24 months) is capped.… On the way to a new, competitive single status on termination of employment contracts?