Rules that excluding executives from union delegation is discriminatory

In January 2021, the Antwerp Labour Court of Appeal (‘Arbeidshof/Cour du travail’) decided that ‘non-baremized’ staff (i.e. staff not subject to the established pay scales in the sector) in the chemical industry should be included in the count when determining the number of mandates of the union delegation, and that they should be able to be appointed as union representatives. Indeed, the Court held that the current exclusion concerns a discrimination and should therefore not be applied. This judgment can, without any doubt, be considered a milestone. 

Exclusion of non-baremized white-collar workers

The basic principles with regard to the implementation of a union delegation within a company have been laid down in the (national) CLAs no. 5 (bis, ter and quater). According to these CLAs, the terms and conditions of such implementation should be agreed at sector level. 

Within Joint Committee 207 (the joint committee for white-collar workers in the chemical industry), this was dealt with in the CLA of 14 May 1999, which governs the statute of syndical representatives of white-collar workers.  The CLA defines two thresholds as from which a union delegation must be implemented: 

  • as from 30 syndicated white-collar workers within a technical business unit; and 
  • as soon as it is requested by 25% percent of baremized white-collar workers. 

In the chemical sector, however, most collective labour agreements, including the CLA mentioned above, are only applicable to baremized staff. Consequently, executives should not be taken into account when calculating the number of syndicated white-collar workers, nor can they ever be appointed as syndical representatives.

The facts in the case at hand

A union delegation has been implemented in a chemical company in Antwerp. However, there has been a disagreement concerning its composition. Relying on the above principles, the employer refused to take executives into account when calculating the number of syndicated white-collar workers. The conflict escalated when the company opposed the appointment of two executives as syndical representatives. 

Despite reconciling efforts, the employer and the union representatives could not come to a solution and, consequently, the CTTU (Confederation of Christian Trade Unions) brought an action before the court. Two other unions intervened in the action. 

The Labour Court of Antwerp, however, found on 29 August 2019 that it was not competent to rule on the matter as it considered a collective disagreement. 

The decision of the Labour Court of Appeals 

First of all, the Labour Court of Appeals declared itself competent, seeing that it concerned an individual dispute concerning the application of a CLA. The fact that the action is brought by several unions and employees does not make it a collective dispute. 

Furthermore, the Court also judged on the merits of the case. The Labour Court of Appeal decided that excluding executives (and thus non-baremized white-collar workers) from union representation - with regard to both the counting of the number of workers and the entitlement to become a union representative - is unconstitutional.

The Antwerp Labour Court of Appeal ruled on 13 January 2021 that the difference in treatment is not based on an objective and reasonably justified criterion. The Court did not agree with the argumentation that executives (non-baremized staff) should be able to defend their own interests. Given the fact that they are subject to the employer’s authority, they should be considered as being in a subordinate position. Furthermore, the Court indicated that individual consultation can never replace collective consultation. 

The Court therefore stated that the distinction between baremized and non-baremized workers constitutes a discrimination on the grounds of articles 10 and 11 of the Constitution. Furthermore, according to the CLA Act, clauses of a CLA are null and void if they are non-compliant with imperative law. Therefore, the Antwerp Labour Court of Appeal ordered the employer to take into account the non-baremized white-collar workers. 

Practical relevance

The Antwerp Labour Court of Appeal decided that excluding executives under the terms of the CLA of 4 May 1999 is unconstitutional and should therefore not be applied. Although this is certainly a milestone case, it is in line with an emerging trend we see in other case law that also rules in favour of including non-baremized employees for union delegation purposes. 

Therefore, it might be vital to consider the impact on your organisation. Please feel free to reach out to us if you would need any assistance in this respect.