The social stakeholders reached an agreement to harmonise the white collar and blue collar employee regimes (See, VBB on Belgian Business Law, Volume 2013, No. 8, p. 17, available at www.vbb.com). The agreement included a harmonisation of the dismissal rules of white collar and blue collar workers and the abolishment of the first day of unpaid sick leave. The draft bill reflecting this agreement already passed in the Chamber.
The draft bill provides that the workers will keep the rights that they have built up under the old system, while the new system will be applied for all seniority which accrues from 1 January 2014 onwards.
This means that for employment contracts that started before 31 December 2013 and end after 1 January 2014, the notice period must be calculated on the basis of both the old and the new systems. If an employer wishes to dismiss an employee, the calculation of the notice period or corresponding indemnity in lieu of notice should therefore be conducted in two steps. First, the calculation must be made for the period up to 31 December 2013 under the old rules. Second, the calculation must be made for the period as from 1 January 2014 under the new rules.
Dismissal of white collar workers
- First step (calculation for the period until 31 December 2013 based on the old rules)
For workers earning less than EUR 32,254 gross per year, the notice period under the old rules is 3 months per commenced period of 5 years’ seniority.
For workers earning more than EUR 32,254 gross per year, the draft bill introduces an exception to the rule that the old rules must be applied to the first step. The draft bill stipulates that the notice period or indemnity in lieu of notice is 1 month per commenced year of seniority with a minimum of 3 months. This means that for dismissals as from 1 January 2014 the Claeys formula and other formulas will no longer be applied, even if the employment contract took effect before 1 January 2012. In contrast with the provisions regarding the modification of the notice periods that had already been introduced in 2012 and stipulated that they would only apply to employment contracts which started after 1 January 2012, the draft bill introduces a single formula which should be applied to all employment contracts, regardless of the date on which the employment contract began.
For workers earning more than EUR 64,508 gross per year, it was possible to determine the notice period or indemnity in lieu of notice by mutual agreement in the employment contract. Based on the draft bill, the notice period or indemnity in lieu of notice should be determined at 1 month per commenced year of seniority with a minimum of 3 months. However, the explanatory memorandum states that all clauses in force on 31 December 2013 will remain applicable. Therefore, it is unclear how the notice period or indemnity in lieu of notice for these workers should be determined (based on the new rules or on the clause agreed between the parties).
- Second step (calculation for the period as from 1 January 2014 based on the new rules)
For the calculation of the notice period or indemnity in lieu of notice for this period, only the seniority accrued as from 1 January 2014 should be taken into account.
Seniority Notice period (dismissal by employer)
Less than 3 months 2 weeks
3 to 6 months 4 weeks
6 to 9 months 6 weeks
9 months to 12 months 7 weeks
1 to 2 years 7 weeks + 1 week per quarter of seniority after the first year
2 to 3 years 12 weeks
3 to 4 years 13 weeks
4 to 5 years 15 weeks
5 to 20 years 15 weeks + 3 weeks per year of seniority after 5 years and with a maximum of 62 weeks
+ 20 years 62 weeks + 1 week per year of seniority after 20 years
The outcome of the first and second step must be added up and this result yields the new notice period or indemnity in lieu of notice that must be respected in case of dismissal.
Dismissal of blue collar workers
- First step
The calculation of the notice period or indemnity in lieu of notice should be made in accordance with the applicable rules in the sector or company at stake.
- Second step
The above calculation which applies to white collar workers must also be applied to blue collar workers.
However, there are exceptions for some blue collar workers who, based on rules within their sector, are entitled to a lower notice period than that provided for in Collective Bargaining Agreement 75. For these blue collar workers and by way of a transitional measure, fixed notice periods are determined and the two-step calculation is not applied.
Once the two-step calculation has been made, a second calculation must be made, based on the full seniority of the blue collar worker and the new rules. The difference between the two-step calculation and the calculation under the new rules will be paid to the worker by the RVA/ONEM as “dismissal compensation”. The additional cost will thus not be paid by the employer.
Another important new provision is that, as of 1 January 2014, the notice for all workers starts running on the Monday following the week in which notice was given.
Van Bael & Bellis will host a webinar during which the changes and impact of the harmonisation of blue collar and white collar regimes on the day to day business of your company will be discussed. Join us for this webinar on Thursday 16 January 2014 from 12.30 am to 13.30 pm. If you are interested in this webinar, please register by sending an e-mail to: email@example.com.