News & Events

Harmonisation Blue and White Collar Workers: Done or under Construction?

Submitted By Firm: Lydian

Contact(s): Alexander Vandenbergen, Jan Hofkens

Author(s):

Date Published: 7/15/2013

Article Type: Legal Update

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1. THE NOTICE PERIODS ARE HARMONISED

As from 1 January 2014, a new regime will come into force for all employees (blue and white collar workers). As from the entry into force of the new legislation, it seems you therefore will have to apply the new notice periods, not only for the new employment agreements, but also for the existing employment agreements.

New notice periods

The new notice periods will evolve in function of the employee’s seniority, but following different phases.

There are already a lot of questions on how to exactly calculate the notice periods.

  • During the first 5 years’ seniority, the notice periods will gradually evolve.
     
  • After 5 years’ seniority, and on top of the 15 weeks’ notice period, the employee will be entitled to three weeks’ notice per started calendar year. For a seniority of 20 years, there is a limit of 62 weeks.
     
  • As from 20 years’ seniority the employee will be entitled to an additional notice period of 1 week for every started year of seniority.

According to the information we received from the Federation of Enterprises in Belgium (VBO/FEB) this would give the following result :

 

Seniority

Notice

0-3mths

2w

3-6mths

4

6-9mths

6

9-12mths

7

12-15mths

8

15-18mths

9

18-21mths

10

21-24mths

11

As from 2y

12

3y

13

4y (+3w/y)

15

5y

18w

6y

21

7y

24

8y

27

9y

30

10y

33

11y

36

12y

39

13y

 42

14y

45

15y

48w

16y

51

17y

54

18y

57

19y

60

20y

62

21y (+1w/y)

63

22y

64

23y

 65

24y

66

25y

67w

26y

68

27y

69

28y

70

29y

71

30y

72

It is not clear whether this is the only possible correct translation of the calculation method as mentioned in the proposition. We notice that the proposition refers to two different ways of calculating the employee’s seniority. As from 5 years’ seniority, the proposition refers to « started calendar year », as from 20 years’ seniority the proposition refers to « started year of seniority ». Hopefully the new legislation will give us some more clarity.

Globally we notice that :

  • until a seniority of 3 years, the notice periods are lower than 3 months (as actually for the so-called lower employees (earning less than EUR 32,254 per year));
     
  • Especially the notice periods of the so-called higher employees (earning more than EUR 32,254 per year) get punched. An employee with 20 years’ seniority is currently entitled to (about) 20 months’ notice period, where according to the new rules, he will only be entitled to a notice period of 14/15 months.

What about the so-called acquired rights?

The agreement provides for a complex and unclear system of transitional measures.

For all employees (blue and white collar workers) in service within the same company before the entry in force of the new dismissal rules (in principle 1 January 2014)

For all employees in service within the same company before the entry in force of the new dismissal rules, the notice periods will be “fixed” until the entry into force of the new dismissal rules. 

This “fixing”-system seems to be rather advantageous for the (higher) employees, because they are currently entitled to higher notice periods.

For the blue collar workers : a correction

As from 1 January 2014, the blue collar workers will gradually be entitled to an equal protection against dismissal as an employee with the same seniority for its complete employment within the same company into the new system. This will follow a certain time path (see hereunder).

The time path will be the following:

  • Publication date of new dismissal rules into Official Gazette: blue collar workers with a minimum of 30 years’ seniority;
     
  • 01/01/2014: blue collar workers with a minimum of 20 years’ seniority;
     
  • 01/01/2015: blue collar workers with a minimum of 15 years’ seniority;
     
  • 01/01/2016: blue collar workers with a minimum of 10 years’ seniority;
     
  • 01/01/2017: other blue collar workers. 

A blue collar worker with 11 years’ seniority on 1 January 2016 will be entitled as from the same date to a notice period that will be calculated following the new rules.

This correction should not entail additional costs for the employers.

Other new measures

The agreement contains other measures, as there are:

  • A general entitlement to outplacement for all dismissed employees (irrespective of their age) from the started 7th year of seniority. Another innovation is that it will be possible to deduct the outplacement package, for an amount of 4 weeks remuneration of the severance indemnity, as far as this indemnity covers a period of more than 6 months. In case a notice period of minimum 7 months must be performed, the employee will have to take up outplacement during the normal leave he is entitled to for seeking another job.
     
  • The industries are granted a term of 5 years to provide for measures for a third part of the notice period or severance indemnity that increase the « employability of employees ». What is meant with « employability » remains unclear.
     
  • The social partners will determine generic criteria to exclude some activities from the new rules. The press refers to the construction industry or to, somewhat more restricted, temporary or mobile construction sites. The question remains whether this exception will not entail new discrimination issues. 
     
  • The social partners will negotiate within the National Labour Council a collective bargaining agreement on motivation of dismissal and good HR-policy, that should enter into force on 1 January 2014. This new collective bargaining agreement will put an end to article 63 of the Act on employment contracts that provides for an indemnity of six months in case of constructive dismissal of a blue collar worker. More details are currently not known.

Compensations for employers

The new harmonised system will of course raise the cost, especially for those industries that traditionally employ a lot of blue collar workers. The agreement contains some measures to ease this additional cost.

It will become possible to take into account complements on unemployment benefits for the notice period or severance pay. The budget that becomes available by the former dismissal indemnity paid by the National Employment Office will be used to compensate the employers with the highest additional cost. The agreement remains vague about the practical planning of these measures.

2. CARENZ DAY ABOLISHED

As from 1 January 2014 the blue collar workers will be paid for their first day of sick leave. There will also be new rules on a more efficient control system of sick leave and measures will be taken to compensate the loss of the discouraging effect of the carenz day and the additional cost of its abolition.

3. NOTICE PERIODS AND CARENZ DAY, AND ANYTHING MORE?

The judgment of the Constitutional Court of 7 July 2011 (and its ultimatum) only concern the notice periods and the carenz day. The agreement therefore exclusively focuses on the harmonization of these two themes.

However, the social partners have agreed on following a strict agenda for the harmonisation exercise of other work conditions, with the explicit will to abolish these differences by 1 January 2014.

Therefore we can expect in the months to come new reforms on for instance holiday pay, the joint labour committees (that are different for blue and white collar workers), guaranteed income, and so on. We keep you informed as soon as we know more about these reforms.

4. LEGAL UNCERTAINTY REMAINS DESPITE OF THE AGREEMENT

Notwithstanding an agreement seems to have been reached, there is still no legal text abolishing the differences between blue and white collar workers. Therefore, you should respect the current regulations on notice periods and carenz days.
At the other hand, the ultimatum of the Constitutional Court has expired. That means that the actual rules on notice periods and carenz days are unconstitutional and that judges could decide to leave these rules aside.

Currently there seems to be a legal gap.

Does this mean that a blue collar worker that you dismiss today will be able to successfully claim the (longer) notice periods of a white collar worker?

It is certain that the risk of legal proceedings can not be excluded in case you dismiss a blue collar worker before the entry into force of the new rules. Hard to predict however if judges will agree with the blue collar worker, certainly because there is a political agreement the judges could refer to and because of the new legislation might contain some transitional measures to deal with the current legal uncertainty.

We would also point out that the social partners, together with the minister of Work have agreed on a certain timeline to implement the agreement into legal texts. This work should be done by the end of December 2013 and the new rules should in principle enter into force on 1 January 2014. If this will become reality, is not clear. The political context and the debate in the parliament will certainly determine the process.

However, it is probably that no solution will be found by 1 January 2014 for all differences that are not based on a legal act (like complementary advantages in an employment contract or a collective bargaining agreement). Therefore we recommend you to outline all these differences and plan for a progressive harmonisation in the future.

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