Constitutional Court nullifies short notice periods for construction workers

On 17 September 2015, the Constitutional Court issued its long-awaited decision on the divergent, shortened notice periods for construction workers in the construction sector.

The Unified Status Act that entered into force on 1 January 2014 introduced uniform notice periods for blue-collar and white-collar workers. In this way, the legislator put an end to the historical discrimination between the two statuses, at least in the area of dismissal rules.

However, a number of exceptional regimes were provided for. For certain specific sectors, including the construction sector, the law provided for much shorter notice periods for blue-collar workers, somewhat inspired by the CLA no. 75. These shortened notice periods apply temporarily through 31 December 2017, unless the sectors should choose to adopt the general system sooner. As of 1 January 2018, the general rules must apply in accordance with the law to all of these workers.

For construction workers, however, the legislator went a step further. For employees without a permanent place of employment and who usually perform works on temporary and mobile construction sites^[1] , it was decided that the divergent shorter notice periods would continue to apply “structurally”, i.e. indefinitely.

It is above all this last, structural exceptional regime that was attacked by the trade unions in the construction sector. They argued that the construction workers were being treated differently without there being any objective and relevant criteria or reasonable justification for such different treatment. Not only are the construction workers in this way treated differently than all other employees, who can enjoy the general notice periods; in addition, there was also a difference in treatment compared to the blue-collar workers, for whom the exceptional regime applies only temporarily, until the end of 2017.

The Constitutional Court in its decision finds that the difference in treatment is indeed significant. With a seniority of eighteen months, the difference between the exceptional regulation (five weeks) and the general periods (ten weeks) is already double. With a seniority of twenty years, the maximum notice period amounts to sixteen weeks, while in the general regulation the periods continue to increase to 82 weeks - more than a fivefold difference - with forty years of seniority. Moreover, the distinction is still, albeit indirectly, clearly based on the old distinction between blue-collar and white-collar workers, precisely what the Unified Status Act was supposed to abolish .

According to the Court, the temporary exceptional regime, reached after an arduously negotiated compromise, is still reasonably justified as a transitional arrangement. However, there is no reasonable justification for any sort of permanent discrimination against construction workers. The exceptional regime not only maintains a continuing discrimination between blue-collar and white-collar workers, but also creates a new discrimination within the construction sector itself through the condition of the "usual" employment on temporary and mobile construction sites.

The Constitutional Court thus concludes that the permanent exceptional regime constitutes an unjustified discrimination, in violation of articles 10 and 11 of the Constitution.

Nevertheless, the Court then mitigated the consequences of its decision, concerned that an immediate nullification of the statutory provisions would lead to substantial legal uncertainty and could put a large number of employers, suddenly confronted with much longer notice periods, into serious financial difficulties. For this reason, the divergent shortened notice periods are maintained until 31 December 2017. Concretely this means that, as of 1 January 2018, all blue-collar workers in the construction sector will be able to enjoy the uniform notice periods applicable to all other blue-collar and white-collar workers.

The employers´ federations in the construction sector have already expressed their unhappiness with this decision of the Constitutional Court. They fear numerous dismissals, increasing foreign competition, as well as greater use of employment contracts for a limited period. We’re going to have to wait and see how the sector, and possibly the legislature as well, will deal further with this.

^[1] In this newsflash hereafter referred to as “construction workers”, although it is noted that these are not only blue-collar workers from the construction sector (PC 124), but possibly also blue-collar workers from the metal sector (PC 111) as well as the upholstery and wood processing sector (PC 126).

For more information on this particular topic, you can consult Sara Cockx (author and head of department).