1. Legal framework of the IPA Act
The new notice periods are specified in the Act of 12 April 20111 , adopted as a result of the rejection by the unions of the draft Inter-professional Agreement2 (IPA). That's why this law is also called the IPA Act. The IPA Act adds a slew of new provisions to the Employment Contracts Act of 3 July 1978.
This Act does not extinguish the differences between blue-collar workers and white-collar workers. However, it is a new step towards a gradual harmonization between the two statuses. The legislator clearly wants this first step to lead to the establishment of common rules for blue and white-collar workers, in every field in which the differences between the two statuses are obvious (inter alia: partial unemployment and notice periods 3).
2. Who is concerned by the new Act?
This new law only applies to employment contracts whose implementation will start on 1 January 2012 or later. It is not the date of the conclusion of the employment contract which has to be taken into consideration, but the date of its theoretical execution.
The IPA Act makes a clear distinction between 'old' blue and white-collar workers and ‘new' blue and white-collar workers. The 'old' category of workers (who have started working or will start working before January 1, 2012) remains under the scope of the previous legislation in case of dismissal, with the well-known notice periods. For those who will start working on 1 January 2012 or after, new notice periods will be implemented. Therefore, the two systems still (temporarily) coexist.
3. What is the new Act about?
- First of all, the IPA Act establishes new notice periods for white and blue-collar workers. The exact duration of these periods is further discussed in section 5 and 6, and can also be found in the summary table.
The notice period must be calculated according to the length of service acquired by the worker within the same company at the time the dismissal occurs. In addition, if notice is given by the employer, the former employment as an agency worker within the same company, may also be taken into account for maximum one year provided that several conditions are fulfilled.
- The IPA Act also provides an additional protection in form of a net termination allowance for blue-collar workers4 who have been dismissed. This allowance applies to dismissals notified from January 1, 2012, and replaces the crisis allowance. Unlike this crisis allowance (which will be abolished after 31 December 2011), the termination allowance will no longer be partially at the expense of the employer: the National Employment Office will have to pay the total amount of € 1.250 in case of dismissal under the scope of the new Act.
The right to a termination allowance applies whether the notice period has been observed by the employee (termination with notice) or not (termination with compensation in lieu of notice). However, its amount differs whether the current legislation or the ‘new' one applies to the dismissal (see summary table).
If the dismissal occurs in accordance with the current legislation, the amount of the termination allowance will be calculated according to the length of service acquired by the employee in the same company.
The termination allowance is not due if notice is given by the employer for serious cause, during the trial period, in preparation for the pension or pre-pension or before the blue-collar worker has six months length of services within the company.
4. What does the new law not foresee?
The new notice periods provided by the IPA Act do not change anything to the existing concepts implemented by the Belgian "dismissal Act". For example, the provisions on abusive dismissal of blue-collar workers, and the formal requirements related to the notification of the dismissal, still fully apply to a dismissal under the ‘new' Act.
5. Concretely: longer notice periods for blue-collar workers
If the employer gives notice, the ‘new' blue-collar workers are entitled to a termination allowance which is 15% higher than the previous one. If the blue-collar worker gives notice, he has to observe the same notice periods as before (see the exact periods in the summary table).
It remains possible to derogate in the employment contract from the regular notice periods to be observed during the first six months of the employment contract (minimum of 7 days for the employer; maximum of half of that period for blue-collar workers). The joint (sub)committees and the National Labor Council are still allowed to provide for different periods in a Royal Decree.
The joint (sub)committees to which applies a Royal Decree with derogating notice periods pursuant to article 61 of the Employment Contract Act and which came into force before 1 January 2012, must check, before 1 January 2013 whether these notice periods have to be adapted or not in the same way as the legal notice periods (increase by 15%).
If no proposal has been made before 1 January 2013, the notice periods will increase by 15%, without exceeding the new notice periods for blue-collar workers. The increase will be implemented as from 1 January 2013 by Royal Decree.
In case of dismissal, the enforced notice period is the one that applies at the time the dismissal is notified.
6. Concretely: legal and shorter notice periods for white-collar workers
The distinction between 'lower level', 'high-level' and 'highest level' white-collar workers remains.
With regard to 'lower level' white-collar workers (i.e. annual gross remuneration under or equal to € 30.535 5), nothing has changed: if the employer gives notice to such a worker, the notice period to be observed by the employer is 3 months (i.e. 91 days) for each started period of five years of length of service with the same employer (legal minimum).
Concerning 'high-level' white-collar workers (i.e. annual gross remuneration higher than € 30.535 and under € 61.0716 ), there are many changes.
Firstly, there will be for the first time for this category, fixed legal notice periods expressed in days. The starting point is that a high-level white-collar worker is entitled to a notice period of 30 days for each started year of length of service at the time of dismissal by the employer. As the legal minimum must always be observed, the notice period for 'new' high-level employees who have worked with the same employer for less than 3 years is 91 days.
For white-collar workers who have worked between 5 and 6 years within the same company, the notice period comes to 182 days (i.e. 91 days (= 3 months-legal minimum) x 2).
For white-collar workers whose length of service is higher than 6 years, the notice period to be observed by the employer is 30 days for each started year of length of service.
According to the new rules of notice, the principle that the parties must set the notice period (not earlier than the date on which notice is given) will thus no longer exist. Moreover, the judge has no longer the authority to set an appropriate notice period. With these fixed notices, there will (in theory) no longer be any discussion in case of dismissal, neither on the length of the notice period nor on the use of a formula aimed at calculating the notice period.
The notice period to be observed if the white-collar worker gives notice has been adopted, taking into account that these workers must observe half of the notice period to be observed by the employer (with a maximum limit).
Secondly, the legal notice periods will be reduced by 3% from January 1, 2014. The starting point is that high-level white-collar workers are entitled to a notice period of 29 days for each started year of length of service.
The IPA Act prevents derogating from the notice periods provided by the Act in the Sectoral Collective Agreements. Increases at the sectoral level could seriously jeopardize the harmonization of the statuses of white and blue-collar workers.
With regard to the ‘highest level' white-collar workers (i.e. annual remuneration exceeding € 61.0717 ), the same changes as for the high-level white-collar workers apply. However, unlike the high-level workers, the highest level workers still have the possibility to set in their contract before starting to work, the notice periods to be observed by the employer (article 82, § 5 of the Employment Contract Act).
Since the legal notice periods for the high-level (and highest level) white-collar workers are expressed in days, the IPA Act provides for a special formula aimed at converting the monthly remuneration of a worker into a daily remuneration. Consequently, the notice period can be calculated in accordance with article 39 of the Employment Contract Act. First, the monthly remuneration is calculated on a quarterly basis; then, it is divided by the number of days held in a quarter:
Daily remuneration of a white-collar worker = monthly remuneration of that worker x 3/91
The benefits granted under the employment contract must be included in the monthly remuneration.
7. Impact of the judgment of the Constitutional Court of 7 July 2011
The Court of Arbitration (now called the "Constitutional Court") had already ruled that the legal distinction between the statuses of the white and the blue-collar workers could no longer be objectively and reasonably justified in a judgment of July 8, 1993.
Nevertheless, the Court stated that the removal of the said inequality was a gradual process, and then decided that the differences between the legal notice periods for blue and white-collar workers were not unconstitutional.
Less than three months after the ratification of the IPA Act by the Parliament, the Constitutional Court decided upon a preliminary question8 at the request of the Brussels Labour Court in a judgment of 7 July 2011. The Court explained that the distinction provided by the ‘old' Act between the white and the blue-collar workers infringed the Constitution in two regards: the notice periods and the days of absence without compensation (with regard to a blue-collar worker, the first day of an incapacity to work going on at least 14 days is unpaid). The Court added, however, that the unconstitutional provisions would apply until new non-discriminatory provisions are passed by the legislator. The legislator has to do so before 8 July 2013.
The crucial question is now to assess the consequences in practice of the aforementioned judgment for the white and blue-collar workers. This question is very relevant as the legislation pertaining to the Constitutional Court does not prescribe the preservation of the legal consequences in case of a preliminary procedure but only in the framework of an annulment procedure.
A judgment held on a preliminary question such as the judgment of 7 July 2011 does not result in a removal of the unconstitutional provision out of the legal system. The court who has asked the preliminary question and the other courts which will probably be involved in the same case (e.g. in appeal), must comply with the answer given by the Constitutional Court.
When the Court finds a violation in the frame of a preliminary question, this provision remains in the legal system9 . In the case at hand, this means concretely that an unconstitutional situation exists and that that situation will remain until 8 July 2013. As a result, the blue-collar worker will not receive a compensation for the first day of absence and will not receive a termination allowance based on the notice period applicable to white-collar workers.
The judgment of the Constitutional Court is not binding, in theory, on the judges dealing with other cases. If they agree with the opinion of the Constitutional Court, they will continue to apply the legal distinction between white and blue-collar workers. If they disagree with the opinion of the Constitutional Court, they have the possibility to ask the same question to the Court with (in our view) few chances of being successful. In this case, the Court can repeat what had been decided on 7 July 2011, in accordance with an established short-term procedure.
The question is: what is going to happen after 8 July 2013 if one finds that there is no or not enough evolution in the harmonization of the statuses of the white and the blue-collar workers? In case of insufficient harmonization, one can decide to refer the matter once again to the Constitutional Court. If new measures of harmonization are passed, the Constitutional Court will have to re-assess the two statuses in order to determine whether the situation is still unconstitutional or not. If no measures are passed before 9 July 2013, we are of the opinion that the judge will have to apply the legal discriminating notice periods even after 9 July 2013 until the entry into force of a new Act 10 . The judiciary must neither act like the legislator nor take his place. In the absence of a new Act, the Belgian state could be held (financially) responsible by the worker who suffered prejudice.
8. Conclusion
The distinction between shorter notice periods for blue-collar workers and longer notice periods for white-collar workers is far from revoked. The notice periods for blue-collar workers will increase by 15%, whilst the notice periods for ‘high-level' and ‘highest level' white-collar workers will gradually lower.
As noted in the preliminary documents of the IPA Act, this Act is a first step towards the harmonization of the statuses of white and blue-collar workers. Further steps have to be implemented by the legislator. The social partners have obviously an important role to play in this process. However, given the rejection of the IPA, the social partners did not make a good impression, so that we should maybe not expect too much from them. It is to be noted that the IPA Act is clearly not sufficient and will not respond to the conditions of constitutionality addressed by the Court, as in the judgment of 7 July 2011, the Court congratulated these measures but considered them as inadequate. The IPA Act is therefore a new step towards the harmonisation of the statuses of the blue- and white-collar workers.
The legislator must nevertheless undertake, as quickly as possible, new measures in order to completely extinguish the differences between white and blue-collar workers with regard to the notice periods. The Constitutional Court has decided that the legislator had to pass such measures before 8 July 2013.
1 Act of 12 April 2011 on the amendment of the Act of 1 February 2011 on the prolongation of the crisis measures and the implementation of the Inter-Professional Agreement, and the implementation of the compromise of the Government related to the draft Inter-Professional Agreement.
2 The Inter-professional Agreements are concluded by the Inter-professional organisations of employers and the organisations of employees (called "social partners"). These agreements have no legal basis and contain no more than moral obligations. They are the starting point of a lot of legislation and collective agreements. Their provisions are implemented by the legislator or the social partners within the National Labour Council. (Van Eeckhoutte W., Sociaal Compendium, I, 2011-2012, p.8)
3 The Belgian Chamber of Deputies, 25 March 2011, Exposé des motifs - memorie van toelichting (explanation of the underlying grounds for a proposed act), 1322/001, p. 3
4 In addition to the blue-collar workers, the employees with a service-voucher employment contract and the employees with a domestic help employment contract will also have the right to the termination allowance.
5 Amount valid for 2011; to be indexed every year
6 Amount valid for 2011; to be indexed every year
7 Amount valid for 2011; to be indexed every year
8 In case a question is asked to a court with regard to the compliance of Acts, decrees and ordinances, with the rules of distribution of power between the State, the Communities and the Regions, or with articles 8 to 32, 170 to 191 of the Constitution, that court must, in theory, ask a preliminary question to the Constitutional Court in this regard. "Preliminary" means: before giving its own position. When a court asks such a question, the proceedings before that jurisdiction are suspended as long as the answer has not been given by the Constitutional Court.
9 The judgments of the Constitutional Court are executory and without further right of appeal. The publication of the judgment makes a new notice running, during which the removal of the said unconstitutional provisions can be asked to the Constitutional Court.
10 Contra L. Vermeulen who states that: "In other words, in case the legislator would not have provided for equality of treatment before 8 July 2013, the Royal Decree and the Collective Agreements providing for notice periods for blue-collar workers, and article 59 of the Employment Contract Act, cannot apply because of the violation of the fundamental right to equality of treatment. So there are no rules concerning the notice period for blue-collar workers anymore. The rules concerning the notice period for the white-collar workers are the only frames of reference that can be used. In order to respect the equality of treatment, I am of the opinion that the judge will have to apply these rules to blue-collar workers; otherwise the judge would take the legislator's place."
De Juristenkrant, 14 Sept. 2011, p. 11; See also, to a small extent, circular letter S.2011/020 of 25 August 2011 from VBO/FEB « Arbeiders en Bedienden: gevolgen van het arrest van het Grondwettelijk Hof van 7 juli 2011 ».
