- Marcel Houben
- unified status , blue collar workers , white collar workers , probation period , notice period , specified work , temporary work
Below you will find some practical guidelines.
The notion “unified status”, which has been used (too) easily within the framework of the law of 26 December 2013, remains a sky-high euphemism.
The real unification of the status of both categories of workers will still require years:
- Separate labour-management committees remain in charge in most industrial sectors for blue-collar workers and white-collar workers; as a result, wages and other terms and conditions of employment will continue to be negotiated at separate levels;
- Blue-collar workers are still paid an hourly salary, while white-collar workers receive a monthly salary;
- Quite different arrangements remain untouched in place with respect to annual vacation.
As a result of a long standing tradition, some employment conditions have almost irreparably
grown away from each other. As a typical example thereof reference can be made to the extra-legal
insurances, which, for many years, have been organised exclusively for the white-collar workers.
All parties concerned (the government and the industrial relations partners) have now agreed that
this difference should be undone by 2025.
Even with respect to the notice periods, the pre-eminent subject of the law of 26 December 2013, the differences between blue-collar workers and white-collar workers will still be felt for many years. Consequently, when hiring a worker – also after 1 January 2014 – the qualification of blue-collar worker or white-collar worker will remain necessary.
Nevertheless, the law of 26 December 2013 has caused a little landslide. For a number of items, HR-policies will have to be revised and a number of documents, which were used for the implementation of these HR-policies (such as master-agreements and the work regulations), will have to be adapted.
A few practical examples follow below.
1. The abolishment of the probation period
The abolishment of the probation period is – most likely – for a lot of people a rather
unexpected modification, introduced by the law of 26 December 2013.
As generally known, the law of 3 July 1978 concerning employment contracts provided for the possibility of introducing a probation period:
- for the blue-collar workers the duration of the probation period was fixed at 7 days up to a maximum of 14 days; after expiration of the first 7 days of the probation period the employment contract could be terminated without notice;
- for the white-collar workers, the duration of the probation period was fixed at a minimum of 1 months and a maximum of 6 months if the annual remuneration did not exceed the gross amount of EUR. 38,665.00; if the amount of the gross annual remuneration exceeded the amount of EUR. 38,665.00, the maximum probation period amounted to 12 months; after expiration of the first month of the probation period, the employment contract could be terminated subject to a notice period of 7 days.
Consequently, the abolishment of the probation period is mainly important for the white-collar
During the discussions in parliament, Minister De Coninck justified the abolishment of the probation period on the basis of the fact that the notice periods, applicable for the white-collar workers during the first months of employment pursuant to the new legislation, were considerably reduced.
Obviously, this can not be denied. For white-collar workers, hired after 1 January 2014, notice periods of 3 months are out of the question. Nevertheless, while, according to the legislation applicable up to 31 December 2013, for white-collar workers, earning more than EUR. 38,665.00 per year, a notice period of 7 days applied during the first 12 months of employment (to the extent a probation period of 12 months had been provided for), the notice period is of 2 weeks at present during the first quarter of employment, going up to 7 weeks during het fourth quarter of employment. Beyond any doubt, a considerable increase!
The probation period had to be confirmed in writing for each employee separately. Usually, the probation period was therefore laid down in the individual employment contract. In as much as master-agreements are used, these have of course to be adapted by abolishing all stipulations concerning the probation period.
Also other possible references to the probation period in the employment contract will have to be reviewed. Within that context reference must be made to the non-compete stipulation in the employment contract. That stipulation is not applicable if the employment contract is terminated during the probation period. As from 1 January 2014, that stipulation shall not be applicable in the case of termination during the first 6 months of employment. Consequently, the reference to the probation period in the non-compete stipulation must be substituted by a reference to the first 6 months of employment. This period of 6 months, as a substitute for the probation period, applies also in the case of the extensive non-compete stipulation and for the commercial representatives.
The duration of the probation period may be determined in the work regulations.
So, also the work regulations will have to be amended by abolishing these stipulations. While a special procedure must be complied with for modifying the work regulations, it seems perfectly defendable to us to implement such a modification of the work regulations without following the special procedure, and this on the basis of a broad reading of article 14.q. of the law on work regulations: this stipulation states that provisions of the work regulations relating to the duration of notice periods may be modified without complying with the procedure. Since the abolishment of stipulations concerning the probation period constitutes fundamentally, in these circumstances, a modification of the length of the notice periods, non-compliance with the procedure for this kind of modification seems perfectly defendable to us.
Also in connection with the applicability of other employment conditions, reference is quite often made to the probation period. Indeed, company cars are often made available only after expiration of the probation period; the same principle may apply with respect to the participation in an extra-legal group insurance or the application of a salary increase. All these references have, of course, to be replaced.
2. Implementation of the new notice periods
Although not legally required and even not enforceable in most cases, in employment contracts
for white-collar workers, quite often with respect to the notice periods reference is made to the
legal minimum notices of three months during the first five years of service, to be increased with
another three months at the beginning of each new period of five years of service.
For white-collar workers, hired as from 1 January 2014, these former minimum notices are more advantageous in many cases than the new notice periods.
The new law allows that more advantageous notice periods, than the ones fixed by law, are agreed upon on an individual basis between employer and employee. Consequently, if for hiring an employee after 1 January 2014, an individual employment contract would be used, still including the reference to the former – more advantageous – notice periods, these would remain applicable. The new law would therefore become without effect in many instances. In order to avoid this, it is necessary to delete these stipulations in the master-employment contracts.
In accordance with the law on work regulations, the applicable notice periods, or the way they are to be calculated, must be laid down in the work regulations. To avoid misunderstandings, it is therefore most important that the stipulations in the work regulations, referring to the notice periods applicable prior to 31 December 2013, are rewritten in consideration of the new legislation.
The implementation of these modifications of the work regulations do not require compliance with the special procedure for modifying work regulations.
3. A tricky problem: the notice periods agreed upon at the time of hiring
This tricky problem results from a deficient drafting of the new legislation.
The law of 3 July 1978 relating to the employment contracts allowed the employer and the
employee, whose annual remuneration exceeded at the time of hiring the amount of EUR. 64,508.00
gross, to agree at the time of hiring on the notice periods, to be respected by the employer,
provided the legal minimum notice is respected. Generally, this possibility was used by the
employers to limit the notices, applicable for the employer, to the legal minimum.
Article 68 §2 of the law of 26 December 2013 provides that the notice periods for the white-collar workers, who are employed at 31 December 2013, are determined for the time of service prior to 31 December 2013 on the basis of “… the legal, regulatory and agreed upon rules, as applicable at 31 December 2013 …”.
As a result of that stipulation, the agreements, validly entered into prior to 31 December 2013, with respect to determining the notice period, to be respected by the employer, remain applicable with respect to the time of service prior to 31 December 2013.
HOWEVER, the following paragraph of article 68 provides that “ …, in derogation of (…) (the preceding paragraph), the notices are fixed at one month as from the beginning of each new year of time of service …).
Taking the text of the law in its literal sense, the notice periods to be respected by the employer, as agreed upon between the parties prior to 31 December 2013, would have to be disregarded.
During the discussion in parliament, Minister De Coninck held repeatedly that these agreements nevertheless had to be complied with. So, the statements of Minister De Coninck do not comply with the text of the law. Consequently, the government had other intentions than literally laid down in the law. A simple redrafting of the text of the relevant paragraph of article 68 would have been sufficient to exclude all misunderstandings. Why Minister De Coninck failed to do so, remains a mystery.
4. The employment contracts for a defined duration and for a specified work
Pursuant to the law of 3 July 1978 relating to employment contracts, particular severance
payments were due in the case of a termination of an employment contract for a defined period of
time or for a specified work prior to the end of the period or the achievement of the work (except
in case of termination for cause). The severance pay was equivalent to the remuneration for the
remaining part of the duration of the agreement up to a maximum of twice the severance pay due in
the case of an employment contract for an indefinite duration.
This principle was tempered because a probation period could be included in the employment contract, during which the employment contract for a defined duration or for a specified work could be terminated, subject to respecting the particular notices, applicable during the probation period.
As a result of the abolishment of the probation period by the new law of 26 December 2013, this possibility disappeared. In order to overcome this, the new law introduced the possibility to terminate, during the first half of the employment contract for a defined duration and for a specified work (in any event not to exceed the first six months of employment), the employment contract subject to respecting the notice period applicable for employment contracts for an indefinite duration. Once that period is expired, the special severance payment remains due in the case of termination prior to expiration of the term (except in case of termination for cause).
In order to avoid misunderstandings between the parties, it is appropriate to include this new arrangement explicitly in the employment contract.
5. Temporary work
The suppleness when hiring has been increased – as a compensation for the abolishment of the
probation period – not only by introducing the possibility to terminate the employment contract for
a defined duration or for a specified work during a certain period, subject to notifying a notice.
Also the extension of the possibility to call on temporary work for filling in a vacant job is to be situated in that context (even if the legislator did not admit this in so many words).
It is a public secret that the regulations on temporary work have been broadly used in practice. Not seldom a candidate for a vacant job was employed as a temporary employee in first instance.
That possibility has been considerably extended by the law of 26 June 2013 and the accompanying collective labour agreement n° 108, entered into within the framework of the National Labour Council on 16 July 2013: for filling in a vacant job, the employer is allowed to hire the candidate in first instance in the vacant job as a temporary worker, with the intention to definitely employ the candidate in the vacant job after the period of employment as temporary worker: interim work can be legally applied in these circumstances during a period up to 12 months.
To put it otherwise: along these lines a would-be probation period is legally introduced, during a period of 12 months, irrespective of the level of the function and the level of the remuneration.
6. The obligation to motivate the decision to terminate the employment contract
Except in specific cases and circumstances, the Belgian legislator did not impose an obligation
on the employer to motivate his decision to terminate an employment contract.
An exception to that principle is article 63 of the law of 3 July 1978 relating to employment contracts: the dismissal of a blue-collar worker is abusive, according to this article, if the reasons for the dismissal are not related to the capabilities or the behaviour of the worker or to the operational necessities of the enterprise: if contested, the employer must submit evidence of the fact that the dismissal was not abusive and if the employer fails to do so, he is liable for payment of a supplemental lump sum compensation, equivalent to 6 months salary. Strangely enough, in our opinion, this article has been used in the past only to a limited extent and it has not been systematically used in practice to force employers generally to motivate the dismissal of a blue-collar worker.
Belgium has been reprimanded several times by international organizations, including the International Labour Organization, because of the fact that the legislation does not impose a general obligation on the employers to motivate the decision to terminate an employment contract.
In the agreement of 5 July 2013 the principle is laid down that each worker has the right to know the reasons why his employment contract has been terminated. The counterpart of such right is of course the obligation of the employer to communicate these reasons. Generally, this principle was referred to as the introduction of a general motivation obligation.
HOWEVER, the government and the parliament lacked the courage to tackle the job themselves. The hot issue has been transferred to the industrial relations partners with the assignment to define the contents of that principle by collective labour agreement, entered into within the framework of the National Labour Council. They were expected to do so by 31 December 2013.
Finally, the industrial relations partners managed to reach an agreement, which will make history as the “CLA nr 109 of 12 February 2014 relating to the motivation obligation”.
In the CLA nr 109 contents is given to this “motivation obligation” in two ways:
6.1. A general right of the worker to know the reasons of his dismissal
The employer does not have an obligation to communicate the reasons of his decision to the
worker at his own initiative at the time of termination of the employment contract of the worker.
Obviously, nothing withholds him from doing so, but if he does not, no sanction applies.
If the worker wants to know the reasons, he must ask his former employer to communicate these reasons to him, and this by registered letter sent within two months following the dismissal. If the former employer fails to reply within two months following the request, he is liable for payment to the worker of a “lump sum civil penalty” equivalent to two weeks salary.
No doubt, this new notion “lump sum civil penalty” will give rise to multiple comments. In any event, the industrial relations partners have asked the government to take the measures, as necessary, in order not to have qualified this penalty as a salary for social security purposes and within the framework of the regulations on unemployment allowances. The qualification for tax purposes will, beyond any doubt, end up along the same lines.
6.2. The obviously unreasonable dismissal
An obviously unreasonable dismissal is defined as a dismissal which “… is based on reasons which
are not related to the capabilities or the behaviour of the worker or which are not based on the
operational necessities of the company … … and which would never have been decided upon by a normal
and reasonable employer.”
By adding the test of a “normal and reasonable employer”, the industrial relations partners wanted to emphasize that the verification is a marginal one, which can not include a judgement of the employer’s policies.
Consequently, a very important task is given to the judiciary to give contents in practice to the notion of “obviously unreasonable dismissal”.
The burden of proof is the worker’s or the employer’s depending on whether or not the worker has asked his employer to communicate the reasons of the dismissal (item 1 above) and depending on whether or not the reasons, invoked by the employer in order to demonstrate that the dismissal is not obviously unreasonable, do or do not correspond with the reasons, which he has already communicated to the worker as a reply to his request, as referred to item 1 above.
If the dismissal is held to be obviously unreasonable, the worker is entitled to a compensation, equivalent to at least 3 weeks salary and maximum 17 weeks salary. The amount of the compensation depends on the degree of unreasonableness. So, again a decisive role for the employment tribunals and employment courts.
A more detailed analysis of this motivation obligation (exceptions, accumulation with other compensations, etc.) will be made in a separate contribution, which will be available on our website within the next few days.