In a much-discussed judgment of 7 July 2011, the Belgian Constitutional Court ruled that the difference in treatment between white-collar employees (i.e. deemed to perform mainly intellectual work) and blue-collar employees (i.e. deemed to perform mainly manual work) which currently still exists under Belgian law is unconstitutional.
In the case brought before the Constitutional Court, a blue-collar employee with 6 years’ seniority had been dismissed with 28 days’ notice. He deemed that he was entitled to an indemnity in lieu of 6 months’ notice, in accordance with the rules applicable to white-collar employees. Furthermore, he considered that he was entitled to remuneration for the “carenzdagen” (i.e. the first day of sick leave, which is unpaid for blue-collar employees, unless the sick leave exceeds 14 days).
The Constitutional Court agreed with the employee by confirming that these two differences between white-collar and blue-collar employees are indeed unconstitutional. Since the preliminary question merely concerned these two differences, the Constitutional Court did not pronounce itself on the other differences in treatment between both categories, such as the holiday pay, the guaranteed remuneration and the trial period.
However, in its judgment of 7 July 2011, the Constitutional Court did not annul the contested legislative provisions.
Instead, it gave the Belgian legislator 2 more years (i.e. until 8 July 2013) to take the necessary measures to remove the differences deemed to be unconstitutional, considering that 18 years is a very long wait.
Indeed, already in its judgment of 8 July 1993, the Constitutional Court had ruled that the specific differences between white-collar and blue-collar employees are neither objective nor well-founded. Nevertheless, at that time, the Constitutional Court did not call for abolishment of the distinction between both categories, but rather for a slow reconciliation of both statutes.
A first step to equalise the position of white-collar and blue-collar employees was taken by the Act of 12 April 2011 (i.e. a few months before the judgment of the Constitutional Court), which substantially changed the notice periods of both statutes.
On 5 July 2013, i.e. 3 days before the deadline imposed by the Constitutional Court, the social partners reached an agreement on the harmonisation of the position of white-collar and blue-collar employees.
Draft legislation adopted on 21 November 2013 has recently been submitted to the Belgian Parliament.
In a nutshell, the new legislation introduces uniform notice periods for white-collar and blue-collar employees. It is prohibited to depart from these rules by collective bargaining agreements concluded at joint committee level (though the prohibition does not extend to collective bargaining agreements concluded at company level). Transitional measures are foreseen for employment contracts applicable before 1 January 2014. Moreover, the “carenzdag” and the trial period are abolished and the right to outplacement is extended. Furthermore, the provision on unfair dismissal that currently applies to blue-collar employees is suppressed. Finally, a collective bargaining agreement introducing an obligation to motivate the dismissal, which currently only applies in the case of dismissal for gross misconduct or of protected employees, will need to be adopted at the latest by 31 December 2013.
The new legislation is expected to enter into force on 1 January 2014.
