Harmonization of social status of workers and employees to be finished by 8 July 2013
Everyone agrees that the differences between workers and employees should disappear over time. The Constitutional Court grants the legislator another two years to harmonize the social status of workers and employees. What are the consequences of this judgment for you as an employer?
End 2010 the social partners did not reach an agreement to equalize the social status of workers and employees regarding the notice period. Via the law of 12 April 2011 (BOG 28 April 2011) there was a gradual approach of the notice periods. These new provisions take effect on 1 January 2012. The notice periods for existing employment contracts remain unchanged.
The Constitutional Court is not in favour of this gradual harmonization of the social status of workers and employees. In an important judgment of 7 July 2011 the Court ruled that the legal provisions on notice periods and the carens day for workers are not in line with the Constitutional principle of equality. A carens day implies that an employer should not pay the wage for the first day of sick leave when the disability period does not exceed two weeks.
Even in 1993 the Constitutional Court (at that time the Court of Arbitration) ruled on the difference in notice periods between workers and employees (judgment n° 56/93 of 8 July 1993). The Court ruled at that time that early 20th century the different treatment of workers and employees was justified, given the different social and economical situation of workers and employees and the kind of work they did (manual labour by workers and intellectual activities by employees). End of the 20th century the circumstances are changed in such a way that the difference can no longer be justified.
The Court grants the legislator in 2011 maximum two years to amend the discriminatory part of the labour legislation and to end the difference in notice periods between workers and employees (judgment n° 125/2011 of 7 July 2011). The judgment follows on a prejudicial question from the Brussels labour court in a case of a worker which was dismissed and received a lower termination fee than would be the case if he was an employee. But until new non-discriminating provisions take effect on 8 July 2013 at the latest, the current legislation applies.
Consequences for employers
For the time being the consequences of the judgment of the Constitutional Court are limited. If you want to discharge a worker or employee granting a notice period or a termination fee, you should apply the current legislation. For labour agreements taking effect as from 1 January 2012, you should take the law of 12 April 2011 into account.
Theoretically other courts may present prejudicial questions to the Constitutional Court, but it will probably remain on its position until 8 July 2013. Until ultimately 8 July 2013 the current legal provisions remain valid, since the legislator should have a reasonable period to implement the necessary amendments.
But if the legislator fails to take the necessary harmonization actions in due time, there is a risk that workers as from 8 July 2013 can before court obtain the same treatment as employees.