LIEDEKERKE HEADLINES LABOUR & EMPLOYMENT
Much has already been written about the in Belgium still existing distinction between blue-collar and white-collar workers1. As of 7 July 2011, a new episode can be added to this story. The Constitutional Court of Belgium ruled that the distinction which is made between blue-collar and white-collar workers with regard to notice periods and the ‘carenz'-day violates the constitutional principle of equality and non-discrimination. The consequences of the unconstitutional legal provisions remain preserved until 8 July 2013 at the latest
The judgment of 7 July 2011 was pronounced in response to questions referred for a preliminary ruling in a procedure between a blue-collar worker and his former employer, the clothing manufacturer Bellerose. The blue-collar worker was dismissed with a 28 days notice. He claimed a severance pay equal to 6 months remuneration, as applicable to white-collar workers with a same seniority.
The blue-collar worker also claimed arrears for the unpaid ‘carenz'-days. Blue-collar workers are in principle not entitled to guaranteed wages for the first day of incapacity to work if the incapacity to work lasts less than 14 days. This first day of incapacity to work is called the ‘carenzdag'. White-collar workers, on the other hand, are entitled to guaranteed wages as from the first day of incapacity to work.
The Constitutional Court ruled that these differences in treatment between blue-collar and white-collar workers are violating the articles 10 and 11 of the Constitution. This is a U-turn in the case law of the Constitutional Court. On 8 July 1993, when the Constitutional Court was still called Court of Arbitration, it was ruled that the fact that a blue-collar worker and a white-collar worker with the same seniority got a different notice period, was not unconstitutional. The Court of Arbitration explained that the difference dated back to the early 20th century. The Court stated that, although it would be irresponsible to introduce this distinction in 1993, this did not suffice to justify a sudden abolition of the distinction. The Court then believed that the preservation of the distinction was justified in order to allow the legislator to harmonize the statutes of blue-collar and white-collar workers gradually.
Now, 18 years later, the Constitutional Court indicates that its patience is running out. The Court ruled that the time the legislator disposes of in order to remedy the earlier established unconstitutional situation is not unlimited. The Court ruled that on 8 July 2013 (this is 20 years after the ruling of 1993) the legislator will have had enough time in order "to complete" the harmonization of the statutes. Consequently, the consequences of articles declared unconstitutional remain preserved until the legislator adopts new provisions, and at the latest until 8 July 2013.
It is questionable whether the legislator will complete the harmonization in the remaining two years. It took some doing before the Act of 12 April 2011 (the so-called IPA-Act) was adopted. By means of this act, the notice periods for blue-collar workers will be increased slightly and the notice periods for white-collar workers will be reduced gradually. This Act, which will be the subject of a Client Memorandum that will appear shortly, will however only apply to employment agreements taking effect as of 1 January 2012. For the ‘old' contracts, everything remains as it was. In view of the judgment of the Constitutional Court, the IPA-Act is "too little, too late".
If the legislator does not take any new initiatives, the situation as from 8 July 2013 looks quite bad for employers with blue-collar workers. Blue-collar workers dismissed after this date will probably try to be granted the same notice periods as white-collar employees.
1The blue-collar workers are deemed to mainly perform manual work, whilst the white-collar workers mainly perform work of an intellectual nature.
For further information, contact: employment@liedekerke.com
