Blue-collar workers, white-collar workers...
quo-vadis?

In its decision of 7 July 2011, the Constitutional Court confirmed in general terms its position that the distinction between blue-collar workers and white-collar workers on the basis of the criteria of manual and intellectual work is not (any more) objectively or reasonably justified.


It gave time to the legislator until 7 July 2013 to cure the situation. Meanwhile it is … ALL HANDS ON DECK !

Already in 1993, the Constitutional Court alerted the Belgian government to the fact that the differences of the employment law status of the blue-collar workers (performing mainly manual work) and the white-collar workers (performing mainly intellectual work) can not (any longer) objectively and reasonably be justified. Nevertheless, the Court took the position that it would not be appropriate to force the legislator to abolish the distinction on a short term, because such a move would cause a too large earthquake on the employment landscape. So, the Court made a choice for a solution by graduality.

The differences, which were particularly at stake in the decision of 7 July 2011, relate to the notice periods applicable to blue-collar workers en white-collar workers, on the one hand, and the “waiting day”, applicable only to blue-collar workers, on the other hand.

The differences with respect to the notice periods applicable to blue-collar workers and white-collar workers are sufficiently known: while the legal stipulations determine the notice periods, applicable to white-collar workers, in terms of months, the notice periods, applicable to blue-collar workers are determined in terms of days. The “waiting day” is the first day of the incapacity to work due to illness, other than professional decease, or due to an accident other than a work accident or an accident on the road to or from work. The blue-collar workers get the salary for this first day of incapacity to work paid only if the period of such incapacity lasts for at least fourteen days. The guaranteed salary for this first day of incapacity is paid to the white-collar workers irrespective of the duration of the incapacity to work.

In its decision of 7 July 2011, the Constitutional Court recognizes that the legislator has made efforts since the first warning of 1993 to harmonize the legal status of both categories of workers (a.o. the law of 12 April 2011, particularly in as much as it modifies fundamentally the notice periods applicable for white-collar workers, provided the performance of the employment contract started as from 1 January 2012). Nevertheless, the Court states categorically that it can not be admitted to still maintain the distinction between white-collar workers and blue-collar workers for more than 18 years (the decision dates from 2011), considering the fact that the distinction had already been declared to be unconstitutional back in 1993. This is especially the case, so states the Court, with respect to the difference which are at stake in the 2011 decision, that is the notice periods and the “waiting day”.

So, the Constitutional Court took the position in 2011 that it had lasted long enough and gave the legislator another delay of two years, that is up to 7 July 2013, to undo the distinction.

Although the Constitutional Court condemns the distinction between blue-collar workers and white-collar workers in general, the ultimatum of 7 July 2013 applies, strictly legally, only to both differences at stake in the decision, that is the notice periods and the “waiting day”.

But, no worries, that proofs to be sufficiently difficult. Quite understandable, the issue of the notice periods is the pre-eminently controversial one. The trade unions aim at extending the notice periods for blue-collar workers to the level of the white-collar workers. The employers’ federations argue that such a measure would raise the employment cost to unseen heights, with all baleful results.

The government was very pleased that it could, in line with the tradition of social consultation, refer the matter to the industrial relations partners in order to try in the first place work out a solution. Since these – as could be expected – were unable to find a way out, the matter got back on the government’s plate; after long discussions, the government did not get any further than submitting 12 (according to the notes in the media) fundamental questions to the industrial relations partners. So, the hot potato was constantly referred from one party to the other, while the clock meanwhile keeps ticking: 7 July 2013 is not an eternity away anymore.

The chaos, which might arise, if no solution can be agreed upon by that date, will be hard labour for the lawyers.

But even if a solution can be found for the items of the notice periods and the “waiting day”, the way to a really unified legal status for blue-collar workers and white-collar workers is still very long and steep, because a lot more than just amending a number of legal stipulations is at stake.

Indeed, a really unified legal status has important financial consequences, not only for the employers, but also for the social security system. By way of example: the introduction of a guaranteed monthly salary in case of illness for the blue-collar workers, just the way it exists now for the white-collar workers, would potentially cause an important increase of the cost for the employers for work incapacity, while it would be beneficial for the sickness insurance because the starting date for the payment of the replacement income allowance to the blue-collar workers would be delayed; shortening the notice periods for the white-collar workers would result in savings for the employers, but would potentially raise the cost of the unemployment allowances; an extension of the notice periods for the blue-collar workers would have the opposite result.

Also the industrial relations infrastructure would logically undergo far-reaching – if not revolutionary – changes.

Up to now, particularly in the traditional large industrial sectors, separate joint labour-management committees have been established for white-collar workers and for blue-collar workers. Such separate joint labour-management committees would not have a reason of existence anymore in the case of a really unified legal status. Logically, these committees would merge and the existing collective labour agreements, entered into within the committees, would have to be harmonized. Considering the far-reaching differences in terms of applicable working conditions, a (impossible ?) titanic job !

Imagine that the arrangements for the financing and the payment of the vacation pay would be unified for white-collar workers and blue-collar workers, that is, logically, extending the system, as existing at present for the white-collar workers, to the blue-collar workers. In that case, the vacation funds, which are at present established by the employers’ federations and which are in charge of paying the vacation pay to the blue-collar workers, would not have any reason of existence anymore.

Within the Christian union ACV-CSC and the socialist union ABVV-FGTB, an affiliated trade union is now in charge of the white-collar workers, respectively LBC-NVK/CNE-CNC and BBTK-SETCa. Separate trade unions, within each of both trade unions, are in charge of the blue-collar workers in the industrial sectors. A really unified legal status for blue-collar workers and white-collar workers would logically result in turning this internal structure within the trade unions (and the power relations) upside down, because both categories of workers would have, logically, concurring interests.

What is to happen to the group insurances, an employment term which, traditionally has been reserved to the white-collar worker ?

Clearly, a really unified legal status for blue-collar workers and white-collar workers is not just a matter of compliance with articles 10 and 11 of the Constitution. Quite to the contrary, a lot more interests, concerns and issues are at stake.

12 June 2013

Marcel HOUBEN - marcel.houben@peeters-law.be

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