On 30 June 2014, the trade unions and other parties brought an action for annulment before the Constitutional Court challenging Article 70 § 4 and part of Article 97 of the Law of 26 December 2013 regarding the implementation of the unified status of blue collar and white collar workers regarding the notice periods, the first day of unpaid sick leave and accompanying measures (Wet betreffende de invoering van een eenheidsstatuut tussen arbeiders en bedienden inzake de opzeggingstermijnen en de carenzdag en begeleidende maatregelen/Loi concernant l’introduction d’un statut unique entre ouvriers et employés en ce qui concerne les délais de préavis et le jour de carence ainsi que les mesures d’accompagnement) (the “Law”).
The plaintiffs contended that Article 70 § 4 of the Law infringes Articles 10 and 11 of the Constitution and Article 26 of the International Covenant on civil and political rights (the ”Covenant”) as Article 70 § 4 of the Law would introduce a different treatment without reasonable justification.
Article 70 of the Law introduces a transitional measure for blue collar workers for the application of the new termination rules, as foreseen in the Law. In order to determine the notice period for blue collar workers, the notice periods of CBA No. 75 should be applied for the seniority built up prior to 1 January 2014, unless deviations at sector or company level apply (See VBB on Business Law, Volume 2013, No. 12, available at www.vbb.com). If the deviating notice periods are lower than those stipulated in CBA No. 75, the deviating rules apply until 31 December 2017 by way of transitional measure.
Article 70 § 4 of the Law introduces an exception for blue collar workers without a fixed place of work who normally perform activities such as excavation work, work on foundations, road work, construction work and demolition work on temporary mobile sites (construction sector) and provides that the deviating rules are not limited in time.
Article 97 of the Law stipulates that blue collar workers who fall under the scope of Article 70 of the Law are excluded from the termination compensation, which is paid by the federal employment agency.
The Constitutional Court has now held that Article 70 § 4 of the Law is discriminatory and that the difference between the transitional measure, which is limited in time until 31 December 2017, and the unlimited exception for blue collar workers envisaged by Article 70 § 4 of the Law, is not based on a reasonable justification. The Constitutional Court therefore annulled Article 70 § 4 of the Law, so that the deviating rules for blue collar workers envisaged by that provision only apply until 31 December 2017.
In addition, the Constitutional Court decided that Article 97 of the Law also introduces a discrimination which is not based on a reasonable justification to the extent that blue collar workers falling under the scope of Article 70 of the Law are excluded from the termination compensation. The Constitutional Court thus also partially annulled Article 97 of the Law, so that the aforementioned blue collar workers will no longer be excluded from the termination compensation. However, the Constitutional Court also held that the consequences of the annulled provisions will continue to apply until 31 December 2017.
