Bill on the introduction of a single legal status for blue collar workers and white collar employees
BELGIUM - Developments have been made to end discrimination between blue collar workers and white collar employees. To implement the ensuing political agreement, the Council of Ministers of the Federal Government approved the Bill on the unique legal status (joint statutes blue collar worker / white collar employee) on 27 September 2013.
Although the text is not yet final, the key messages of the proposed legislation are now more explicit:
1. The entry into force of the new legislation is planned for 1 January 2014. The new scheme is applicable, in principle, to workers dismissed after 1 January 2014. Any dismissals prior to the entry into force of the new legislation retain all their legal consequences. The period of notice for employees whose employment commenced before 1 January 2014 is calculated based on the total of two factors. The first factor is the level of seniority acquired by 31 December 2013. The second factor is the level of seniority acquired as of 1 January 2014.
This new legislation has already been exposed to severe criticism because of the period of legal uncertainty. Indeed, in its ruling of 7 July 2011, No.125/2011 , the Belgian Constitutional Court gave the Belgian Parliament a deadline to abolish discrimination between white collar and blue collar employees, namely by 8 July 2013, while the new legislation will only enter into force on 1 January 2014.
2. The new period of notice is based on the criterion of seniority and is expressed in weeks. All employees’ notice periods start on the first Monday following the week in which notice was given.
The following notice periods apply when the employer terminates the employment relationship.
During the first five years of service, the notice period evolves progressively: quarterly during the first two years of service and annually thereafter. The period of notice shall be:
• First quarter = 2 weeks
• Second quarter = 4 weeks
• Third quarter = 6 weeks
• Fourth quarter = 7 weeks
• Fifth quarter = 8 weeks
• Sixth quarter = 9 weeks
• Seventh quarter = 10 weeks
• Eighth quarter = 11 weeks
• 2-3 years = 12 weeks
• 3-4 years = 13 weeks
• 4-5 years = 15 weeks
From the 5th to the 19th year of service, the increase of the notice period levels out and the period of notice only increases by an additional 3 weeks for each started year of seniority. After 20 years of service, the increase in the notice period slows down, with an additional 2 weeks for each started year of service. After 21 years of seniority, the increase is one week for each additional year of seniority.
When the employee gives notice, the notice period shall be at least 1 to 13 weeks (in case of 8 years of seniority). Shorter periods of notice apply to counter dismissals of employees (i.e., the employee is dismissed, but resigns voluntarily because he/she has found another job prior to the last day of work) and termination at retirement age. The Bill stipulates that derogation from the legal periods of notice by a collective labour agreement concluded in a joint committee or a joint subcommittee is not permissible.
3. The regulations on the termination of a fixed-term employment contract have been modified. It will now be possible to terminate a fixed-term employment contract by premature notification before the expiry of the term. This may occur during the first half of the agreed duration of the employment contract, but only for a period which does not exceed six months, whilst respecting the legal notice period stipulated by law for an indefinite employment relationship. In case of justified successive fixed-term employment contracts, the possibility of premature termination only applies to the first employment contract.
4. Probationary periods have been abolished, with a few exceptions only, including employment contracts for students. The probationary clause in an employment contract which commenced before 1 January 2014 retains its legal effectiveness.
5. The legal provision on abusive dismissals of blue collar workers, as specified in Article 63 of the Employment Contracts Act, will be removed and replaced by a new scheme. The current provision will apply until the entry into force of a new collective bargaining agreement concluded by the National Labour Council for the private sector, AR, which will denote the reasons for dismissal, and will also include employers and employees from the public sector, who are not covered by a collective bargaining agreement until the introduction of a similar legal scheme. The new regulation will specify the reasons for dismissal of employees.
6. Under certain conditions, the employer is obliged to offer an outplacement assistance to a dismissed employee who is entitled to a period of notice or compensation of at least 30 weeks.
7. No later than the 1 January 2019, all branches of industry must provide employees who are entitled to a notice period of at least 30 weeks a dismissal severance package including a period of notice or corresponding dismissal compensation representing two thirds of the redundancy package, and measures that increase the employability of the worker on the labour market (representing the remaining one third of the severance package).
8. The new rules may affect the cost of dismissal. The Government will therefore provide some form of compensation for employers.