In its recent Arrest of September 17, the Court declared void two provisions of the 26 December 2013 Act on the uniform status which entered into force on January 1st, 2014.
The 26 December 2013 Act, also named « The Uniform Status Act », was adopted in order to harmonize the notice periods between employees and workers.
The 2013 Act followed a judgment of the Constitutional Court of 7 July 2011 which considered that the difference in treatment based on the nature of the work (intellectual vs. manual labour) was no longer justified.
Even if the Uniform Status Act instaured a general regime with new notice periods, it still included an exemption for workers of specific sectors. The legislator argued that the immediate application of the new regime would have jeopardized the employment in those sectors.
Hence, a particular regime was instituted.
For the workers in the construction sector, the particular regime was not transient but unlimited in time and this was denounced by the trade unions.
An action for annulment was therefore lodged with the Consitutional Court by the three national trade unions (FGTB, CSC, CGSLB), affiliated members, Presidents of those organisations, together with trade union representatives and workers.
The action targetted two provisions of the 2013 Act.
In this legal news item, we will focus on the ratio legis of those provisions.
1.
A particular treatment fixed notice periods shorter than those established by the general framework, with progressively larger differences dependent on the increased length of service.
It is likely to apply in two cases:
- In those sectors where notice periods derogated from those instaured by the Act of 3 July 1978 provided that such periods are, on 31 December 2013, inferior to the ones provided by the new particular regime. The Act provides that this derogation is transient: it expires no later then 1 January 2018;
- In the construction sector for workers without a fixed place of work and occupied on temporary or mobile construction sites. Unlike the first case, the application of the special scheme here was unlimited in time. This is the provision – instauring the derogation – which was attacked before the Court.
The legislator justified the introduction of this derogation for the construction sector by the aim to fight against labor shortages and to preserve social protection for workers, promoting the conclusion of open-ended contracts.
In its judgement, the Court finds that those reasons do not justify the unlimited nature in time of the exemption provisions for workers active in the construction sector.
The Court declares void the contested provision since it maintains an unreasonable different treatment.
2.
The Act on the uniform status introduced also an allowance as compensation in case of dismissal.
This compensation, for which the National Employment Agency (ONEm) is responsible, is addressed to those workers who entered into service before January 1st, 2014, who were dismissed from that date and whose seniority was at least 15 years on January 1st, 2015 (period which decreases to 10 years in 2016 and to less than 10 years in 2017).
The calculation of the notice period is partially based on the old legislation which causes a disadvantage to workers, hence the compensatory allowance. The amount of the allowance equals the difference between the amount paid by the employer and the amount based on the general scheme introducing the new notice periods, which is more favorable.
Under the contested provision, workers falling under the exceptional – derogating - regime with respect to the notice period, as explained above, were not entitled to the capital allowance as compensation for dismissal.
The Court considers that this difference in treatment is, neither, based on any reasonable justification. It thus partially cancels the provision where it excludes from its scope certain workers covered by the special plan.
What can be learned from this decision?
In its decision of 17 September 2015, the Court declares void two provisions of the Act on the uniform status.
The first provision regulates the workers active in the construction sector, without a fixed place of work and occupied on temporary or mobile construction sites. For those workers, the fixed derogatory regime for notice periods is declared void.
The second provision concerns the allowance paid as compensation for the dismissal. The Court declares void the provision which excludes from the allowance those categories of workers benefiting from a derogatory scheme for notice periods.
The Court, however, maintains the effects of the annulled provisions until 31 December 2017, in order to allow the concerned employers and sectors to prepare for the change.
Beyond that date, all workers in all sectors will benefit from exactly the same notice periods.
