- Marcel Houben
- notice period , unpaid first day of absence , compromise proposal , motivation , lay-off
Consequently, the rules should have been adapted as from 8 July 2013.
Only at the last minute a “final compromise proposal of the Minister of Work” has been tolerated by the industrial relations partners. The proposal still raises a lot of questions. Nevertheless, the proposal must be converted into effectively applicable rules at the latest by 31 December 2013, be it by legislation or by collective labour agreement.
No doubt a hussars’ job for Minister De Coninck !
Already in 1993 the Constitutional Court (at the time the “Arbitration Court”) warned the legislator that the differences of the employment status of the blue-collar workers (workers performing mainly manual work) and the white-collar workers (workers performing mainly intellectual work) could not be justified any longer on an objective and reasonable way on the basis of that criterion. At that time the choice was still made for a solution by graduality by granting the legislator the necessary and appropriate time to undo the differences.
In its decision, dated 7 July 2011, the Constitutional Court concluded that – notwithstanding the warning of back in 1993 – the legislator had things let be during almost 20 years, save for some modest attempts to change things. Therefore, in its decision of 7 July 2011, the Court imposes on the legislator to undo the differences, at stake in the decision, within the next two years.
The legislator (together with the industrial relations partners) was not successful in doing so. The parties concerned did not get beyond the point of putting together a “Final compromise proposal of the Minister of Work”, which – according to the proposal – must be converted into effectively applicable rules on 31 December at the latest.
1. The legal vacuum
As a consequence of the above, a legal vacuum came into existence as from 8 July 2013 up to the
date, on which the new rules become effective, particularly as regards the differences at stake in
the decision of 7 July 2011, that is the notice periods for the blue-collar workers (article 59 of
the law relating to employment contracts) and the unpaid first day of absence from work due to
illness as applicable to the blue-collar workers (article 52, §1, second to fourth paragraph of the
law relating to employment contracts).
From a strict legal point of view, on the one hand, as from 8 July 2013, article 59 can not be relied upon anymore to determine the notice period for a blue-collar worker, but, on the other hand, the new rules do not yet apply. Repeatedly, it has been suggested that this situation should put the blue-collar worker in a position to claim application of the notice periods for white-collar workers and that he should be in a position to claim payment for damages from de Belgian State, because he finds himself in a completely uncertain legal position as a result of the negligence of the Belgian State because of its failure to meet the 8 July 2013 deadline.
2. The “final compromise proposal of the Minister of Work”
Albeit that, also by the Constitutional Court, the differences in general between blue-collar workers and white-collar workers are questioned, yet the final compromise proposal focuses on the differences, particularly at stake in the decision of 8 July 2013: the notice periods for blue-collar workers and the unpaid first day of absence due to illness.
3. The new notice periods for blue-collar workers and white-collar workers :
For the workers who are engaged as from 1 January 2014, the notice periods, determined in terms of weeks (as opposed to, at present, days for the blue-collar workers, and months for the white-collar workers), are fixed as follows :
- during the first quarter of employment: 2 weeks
- during the second quarter of employment: 4 weeks
- during the third quarter of employment: 6 weeks
- during the fourth quarter of employment: 7 weeks
- during the fifth quarter of employment: 8 weeks
- during the sixth quarter of employment: 9 weeks
- during the seventh quarter of employment: 10 weeks
- during the eighth quarter of employment: 11 weeks
- during the third year of employment: 12 weeks
- during the fourth year of employment: 13 weeks
- during the fifth year of employment: 15 weeks
- as from the beginning of the sixth year of employment (five years plus one day), the notice period is increased by three weeks at the beginning of each year of employment, up to a total of 62 weeks of notice;
- as from the moment the time of service of a worker is equivalent to 20 years, the notice period is increased by 1 week at the beginning of each new year of time of service.
4. Maintaining the rights, acquired in the past
The workers, who are employed at 1 January 2014, maintain their rights, acquired up to 1 January
2014 pursuant to the rules as existing at present. For the period of employment as from 1 January
2014, a notice period, calculated in accordance with the rules above and taking into consideration
the time of service as from 1 January 2014, is added to the acquired notice period referred to
As a result of the above, the rules concerning notice periods, as applicable at present for the white-collar workers, including the evaluation of the reasonable notice period on the basis of the time of service, the age, the remuneration and the function, shall continue to have an important impact for a considerable time on the applicable notice periods.
5. Gradual implementation of the new system for the blue-collar workers, who are employed at 1 January 2014
If a blue-collar worker, who is employed at 1 January 2014, is, in accordance with the new
system and taken into consideration the total time of service, entitled to a notice period which is
longer than the notice period, he is entitled to pursuant to the existing system, the new rules
will be applied with immediate effect provided the blue-collar worker has a time of service of at
least 30 years at the date of publication of the new rules in the Belgian State Gazette.
For the blue-collar workers, having build up a time of service of at least 20 years, 15 years and 10 years at date of publication in the Belgian State Gazette, the new regulation will become entirely applicable as from, respectively, 1 January 2014, 1 January 2015 and 1 January 2016. For the remaining category of blue-collar workers, the new system will be entirely applicable only as from 1 January 2017.
Consequently, the currently applicable rules concerning the determination of the notice periods for blue-collar workers will still remain applicable for some years.
As to the additional cost, resulting from the new system for the blue-collar workers, the employers will receive a compensation, which will we financed by means which will become available as a result of changing the tax release of a part of the severance pay.
6. Complementary measures
In a number of industrial sectors, regulations have been introduced, providing for a supplement
to the unemployment allowance payable to the blue-collar workers. In the new system, it will be
allowed to deduct this supplement from the “notice period or – compensation”. It is not clear hoe
such a deduction can be put into practice if the notice period has to be performed (as opposed to
termination by payment of a severance pay). In addition, the question arises whether such deduction
will apply only in the case of payment of the supplement by the employer, or also in the case of
payment of the supplement through the intermediary of the sector social fund.
All workers, having at least 6 years of time of service, will be entitled to outplacement services, for a total value of four weeks salary. The cost for the outplacement services can be deducted from the severance pay, provided the severance pay covers a period of 6 months. The question remains whether such deduction will also be allowed if the severance pay covers a period of 27 weeks (notice period applicable as form the beginning of the 9th year of service), or is deduction allowed only if the severance pay, after deduction of the cost for the outplacement services, covers a period of 6 months. The paragraph in the proposal, following the paragraph concerning the above, suggests that the second alternative applies: the workers who have to perform the notice period, will have to take out the outplacement services during the days of allowed absent from work for “job hunting” in as much as “….. a notice period of at least 7 months is performed.”
The sectors have 5 years to introduce measures, substituting 1/3 of the notice period or of the severance pay, aiming at increasing the availability of the worker for the labour market, to the extent the remaining 2/3 of the notice period or of the severance pay covers 6 months. It is not clear how this can be put in practice if the notice period is performed. Parafiscal measures have been announced in order to encourage the implementation of such measures.
The partners in industrial relations are granted the possibility to exclude activities from the
new rules and these activities have to be selected on the basis of agreed upon “generic criteria”.
Collective labour agreement nr 75 (with respect to the notice periods for blue-collar workers) remains applicable to these activities, in as much as the notice periods, applicable pursuant to collective labour agreement, are shorter than the notice period applicable pursuant to the new regulation.
Surprisingly, reference is made to “activities” as opposed to “sectors”. This could result in different notice periods in one sector, even in one enterprise, to the blue-collar workers, depending on their activities. Certainly, Minister De Coninck has/had the intention to limit this exception to the strict minimum, mainly having in mind the construction industry. Meanwhile, it became clear that the employers’ side may be having somewhat different ideas about these exceptions and also other “activities” are pushing to enter the door to the “room of the exceptions”.
In view of mitigating the additional costs, resulting for the employers from the new regulation, a number of measures and actions are announced.
9. Remaining questions and issues
In order to render the “final compromise proposal” fit for implementation, a number of issues will have to be resolved. As examples, reference is made to the following:
- starting date of the notice period: the starting date of the notice period for blue-collar workers is at present the first day of the week, and the first day of the month for blue-collar worker. As the notice period in the new regulation is determined in terms of weeks, it seems logic that the starting date for all workers will be the first day of the month.
- for the white-collar workers, employed at 1 January 2014, the acquired rights at 1 January 2014 pursuant to the existing regulations, remain valid. These acquired rights are determined in terms of months. To the notice period, thus acquired, a notice period, determined in weeks, will be added for the time of service as from 1 January 2014. So it appears logic that the total notice period will be determined in terms of weeks. However, how will a month be converted into weeks, considering that one month does not equal four weeks ?
- the proposal does not include any reference to the counter notice, to be respected by the employee. The existing system will, in any event, have to be completely modified, particularly for the white-collar workers, but also for the blue-collar workers;
- considering the short notice periods during the first eight quarters of employment, suggestions are made to abolish the probation period. It is not quite clear whether or not the issue has been discussed during the negotiations of the “final compromise proposal”.
- so far the legal vacuum has, apparently, not yet given rise to insurmountable problems, probably in particular thanks to a “gentleman’s agreement” between the industrial relations partners. However, what is to be expected if the 1 January 2014 deadline will not be met ?
- the determination of the “generic criteria” for selecting the exempted activities will, beyond any doubt, give rise to extremely difficult negotiations. An additional problem is the fact that different notice periods may be applicable to fellow-workers – employed in the same enterprise – depending on the activities of the workers concerned. How will the workers react to such differences ?
10. Motivation of the lay-off
So far, a general regulation providing for the motivation of a lay-off by the employer exists
only for the blue-collar workers: article 63 of the law relating to employment contracts: a lay-off
is abusive if the reasons for the lay-off are not related either to the capabilities or the
behaviour of the worker or to the operating necessities of the company. If the worker challenges
the reasons invoked by the employer, the latter has to submit evidence of the reasons invoked; if
the employer fails to do so, he is liable for payment of a supplemental lump sum indemnity
equivalent to 6 months salary.
In the “final compromise proposal” the Minister of Work is charging the industrial relations partners with entering into a collective labour agreement within the National Labour Council relating to “ ... a regulation relating to the motivation of a lay-off and a good HR-policy concerning lay-offs ...”. This collective labour agreement should, according to the proposal, enter into force as from 1 January 2014. Albeit that, as it seems, the industrial relations partners are put under pressure by the Minister of Work to meet the deadline, the question remains whether this deadline isn’t too ambitious; the fact that the issue of the motivation of the lay-off is left to the industrial relations partners, indicates clearly how delicate and sensible the question is.
At date of entering into force of the new collective labour agreement, article 63 of the law relating to employment contracts will be abolished.
11. Other differences of the statuses of blue-collar and white-collar workers
A real unified status of blue-collar workers and white-collar workers will naturally not be
realized by the simple implementation of the “final compromise proposal”. With respect to a number
of other items, far-reaching differences between blue-collar workers and white-collar workers
remain in existence (see o.a. our "news"-item on our website “Blue-collar
workers, white-collar workers ... Quo vadis?").
Neither the Arbitration Court in its decision of 8 July 1993, nor the Constitution Court in its decision of 7 July 2011, left any doubt about the fact that a complete unified legal status must be the ultimate goal.
In line with this general purpose, the industrial relations partners have been given the assignment “…… to settle in accordance with a pressing time frame the other elements of the file “blue-collar workers/white-collar workers ...”.
The vagueness of this assignment illustrates clearly and abundantly the delicate nature of the issue. The question remains therefore when a real unified legal status may/can be put into practice.