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Belgian constitutional court rejects special severance regime in construction industry as of 2018



The existing statutory notice terms for blue collar workers in the construction industry were found to be discriminatory by the Belgian Constitutional Court in its ruling of September 17, 2015 because they are significantly lower than the notice terms in other industries. By 2018, the general statutory severance rules will also apply to these workers unless the legislator enacts a lawful alternative.

What is the historical legal background?

On July 7, 2011, the Belgian Constitutional Court ruled that the different existing rules in order to determine the notice periods/severance payments for blue- and white-collar workers were discriminatory. The Court explicitly requested the legislator to come up with a solution in order to harmonize the existing differences by July 8, 2013.
The latter ruling resulted in the Act of December 26, 2013 on the unified statute for blue- and white-collar workers, which entered into force on January 1, 2014 and which provides for harmonized notice periods for blue and white-collar workers.

Nevertheless, this Act also includes permanent deviating (significantly) lower notice periods for workers (i) who are not employed on a fixed working place and (ii) who usually perform construction related activities (as listed in the Act) on temporary mobile construction site.

As expected, the deviating notice periods for blue-collar workers in the construction industry gave rise to a claim filed before the Constitutional Court.
What does the September 17, 2015 ruling state?

Analyzing the legislation, the Constitutional Court specifically rejects the permanent nature of the lower notice periods for the blue-collar workers from the construction industry. While similar lower notice periods apply for other blue-collar workers from specific industries which are temporary (up to December 31, 2017) and are regarded as transitional measures, the blue-collar workers in the construction industry are excluded from the general notice periods on a permanent basis.
The Constitutional Court takes into account that an immediate annulment of the lower notice periods would create legal uncertainty and could have significant financial consequences for the employers pertaining to the construction industry.

Therefore, the Court decided that lower notice periods could remain in force until December 31, 2017.
How does this ruling affect your business?

Until December 31, 2017, the existing lower notice periods for the blue-collar workers from the construction industry remain in force (unless the legislator provides for a new regime earlier).

As of January 1, 2018 all workers from the construction industry will be entitled to the unified notice periods which will result in an increase of severance costs.

K law can always assist you when assessing the severance payments in case of an envisaged dismissal of blue-collar workers from the construction industry both in a national and international context.

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