Brussels HR Law Focus Newsletter No.1

Our "HR Law Focus" newsletter is released every time we judge that new legislation or case law might be important for your business.

Our "HR Law Focus" newsletter is released every time we judge that new legislation or case law might be important for your business. Besides the newsletter, we organise regularly "HR Law Focus" seminars: our next seminar is scheduled for 28 January 2014 with an overview of the most relevant legal developments for the HR practice.

Bill to introduce a single status for blue and white-collar workers

As we already pointed out to you at numerous occasions, the proposal of bill on the single status (harmonisation of the statutes for blue and white-collar workers) was approved by the Governmental Cabinet on September 27, 2013.

On 31 December 2013 the Bill has been published in the Official Gazette and took effect as from 1 January 2014. Please find below the main features of this new Bill.

One month per year of service (white-collar workers) and application of the existing notice periods for blue-collar workers for the period before January 1, 2014, and new notice periods as from January 1, 2014 (also for existing contracts): the new rules apply to workers made redundant as from January 1, 2014. Notice given before the entry into force of the new legislation will be dealt with under the law in effect before that date. For the determination of the applicable notice period under the new rules, two distinct periods will be taken into account: that before January 1, 2014, and the period as from January 1, 2014. For contracts where no notice/severance was determined before the entry into force of the employment contract, seniority acquired before 1 January 2014 will qualify for a notice period of (i) either a notice of three months per started period of 5 years of seniority for white collar workers (earning ≤ 32,254 EUR) or (ii) one month per year of service for white-collar workers (earning > 32,254 EUR) with a minimum of three months; for bluecollar workers, the notice periods applicable on 31 December 2013 will apply to determine the notice for the period until 31 December 2013. For the period as from 1 January 2014, fixed notice periods will apply (based on the seniority acquired as from that date – see table below). Negotiations about the notice period/severance pay of white-collar workers (and the formulae developed for this purpose) is a thing of the past as from January 1, 2014.

 

Seniority (as from 1 January 2014)	Notice Period
From 0 to less than three months	2 weeks
From three to less than six months	4 weeks
From six to less than nine months	6 weeks
From nine to less than twelve months	7 weeks
From twelve to less than 15 months	8 weeks
From 15 to less than 18 months	9 weeks
From 18 to less than 21 months	10 weeks
From 21 to less than 24 months	11 weeks
From 2 years to less than 3 years	12 weeks
From 3 years to less than 4 years	13 weeks
From 4 years to less than 5 years	15 weeks
From 5 years to less than 6 years	18 weeks
From 6 years to less than 7 years	21 weeks
From 7 years to less than 8 years	24 weeks
From 8 years to less than 9 years	27 weeks
From 9 years to less than 10 years	30 weeks
From 10 years to less than 11 years	33 weeks
From 11 years to less than 12 years	36 weeks
From 12 years to less than 13 years	39 weeks
From 13 years to less than 14 years	42 weeks
From 14 years to less than 15 years	45 weeks
From 15 years to less than 16 years	48 weeks
From 16 years to less than 17 years	51 weeks
From 17 years to less than 18 years	54 weeks
From 18 years to less than 19 years	57 weeks
From 19 years to less than 20 years	60 weeks
From 20 years to less than 21 years	62 weeks
From 21 years to less than 22 years	63 weeks
From 22 years to less than 23 years	64 weeks
From 23 years to less than 24 years	65 weeks
From 24 years to less than 25 years	66 weeks

 

Exception for certain sectors of industry: For certain types of workers with no fixed place of employment, namely workers employed at a temporary or mobile workplace for (certain) construction works (specific activities are listed in the bill), the notice periods which were reduced based on the current sections 61 and 65 of the Employment Contracts Act continue to be reduced. Moreover, as a transitional measure, this should also be the case for such reduced notice periods served between January 1, 2014, and December 31, 2017, in the sectors for which a reduced notice period was set before 31 December 2013 by royal decree based on articles 61 and 65 of the Employment Contracts Act (for instance workers employed in the diamond, textile, lumber, small commercial facilities, ….. sectors). The Council of State had a remark on this new distinction being introduced by the legislator; the government has however not made any changes in this respect; the Constitutional Court will have to rule on this issue when asked to do so.

Notice period in weeks: The new notice periods are based only on the criterion of length of service and are expressed in weeks. For all workers, notice takes effect on the Monday following the week in which it is served (which means that notice has to be sent by recorded delivery mail no later than the Wednesday of one week to take effect on the next Monday). The weekly salary is calculated as follows: month's salary x 3 / 13 (as each quarter counts 13 weeks).

Notice by a worker: For employees to give notice new notice periods apply also for contracts taking effect on 1 January 2014. If a worker gives notice, the notice period will be a minimum of one week and up to 13 weeks in length (in the case of eight years’ seniority).

Shorter notice periods: Shorter notice periods apply for "counter-notice" (i.e. notice by the employee after being given notice by the employer), notice upon retirement (26 weeks) and – still to be determined – notice periods in cases of restructuring or closure.

Derogation by company CLA: It is possible to deviate from the legal notice periods by means of a company-level collective labour agreement only. It is unclear whether individual deviations on the notice periods will still be possible, i.e. agreed upon before entry into service of the employee or agreed upon during the employment agreement. Valid agreements on termination modalities, existing on 31 December 2013 and concluded on an individual level, remain valid and enforceable.

Fixed-term employment contracts: Early termination of a fixed-term employment contract by serving notice will be possible, namely during the first half of the agreed term (but in any case within the first 6 months of the contract). In the case of (justified) successive fixed-term contracts, this possibility only applies to the first agreement.

Trial period: Trial periods are abolished (albeit with a few exceptions for students, employment contracts for temporary work and interim work). According to our calculations ending the employment contract after the first six months becomes more expensive than under the present regime with trial period (at twelve months the notice becomes 7 weeks where it is only 7 days under the present regime). Trial periods which have already taken effect on January 1, 2014, will remain in full force and effect.

Grounds for dismissal: As no Collective Bargaining Agreement concluded within the National Labour Council entered into force before the end of 2013, no specific regulations in respect of motivation of the dismissal came into force. Article 63 of the present Employment Contracts Act remains valid and enforceable. This includes the (manual)workers can only be dismissed for reasons of behaviour, economic circumstances or professional capabilities. We would strongly recommend employers dismissing workers as from 1 January 2014 to identify the reasons of dismissal to be in accordance with the three motives detailed in the previous sentence. We will keep you updated on the evolutions in this respect but according to our information any changes would not occur in the next few weeks.

Loss of guaranteed salary: guaranteed salary can be lost if the employee (i) fails to inform the employer immediately of his/her incapacity for work or (ii) fails to submit a medical certificate within the prescribed period or (iii) is not available for the supervising doctor. The employee will have to remain available for a least 4 consecutive hours for the supervising doctor to be able to perform the control (the sectors or companies will be able to determine the modalities of this control by CLA or adapting the work regulations – règlement de travail/arbeidsreglement). The availability needs to be proportionate to the purpose of the control.

Outplacement: Under certain conditions, the employer must offer outplacement assistance to an employee dismissed on a notice period of 30 weeks or more or who is paid a corresponding compensation in lieu of notice (as from 9 years continued seniority every employee will have an entitlement to outplacement).

Compensation in lieu of notice: The manner in which compensation in lieu of notice is calculated remains unchanged, taking into account the amendments by the Act of April 12, 2011.

Sector-level compensations: Existing additional industry-sector-level compensations paid after and as a result of the unilateral termination of an employment contract by an employer and which are aimed at ensuring the livelihood of the employee after dismissal are deducted from the notice period or compensation in lieu of notice.

Job-application leave: During the last 26 weeks of the notice period, the employee is entitled to one day a week as job-application leave. During the preceding period, the employee is entitled to a half day a week.

Compensation allowance/termination allowance: under certain conditions, ex-manual workers are compensated for the lower termination compensation for the period before 31/12/2013. It is the intention to insert them properly into the new regulations. The unemployment office will pay the indemnity; modalities still to be determined by RD.

Activation of employees: No later than January 1, 2019, all sectors (joint (sub)committees) will have to set up a dismissal scheme for employees with a notice period of 30 weeks or more, which is made up of a notice period or compensation in lieu of notice covering two-thirds of the dismissal package and, for the remaining third, measures which increase the employability of the worker in the labour market.