Wages – seniority – sectoral provisions – indirect discrimination on the basis of age – professional experience
The Labour Court of Leuven, in a judgment of 11 April 2019, has declared a sectoral collective agreement non-applicable as it linked wage increases to the seniority of the employee, because it deemed it to be in contradiction with the prohibition of discrimination based on age.
It is standard practice in Belgium for the sectoral joint committees to negotiate collective agreements, which provide for fixed pay scales based on the seniority of the employees. Therefore, employees with a higher seniority, will move to a higher salary scale and thus receive a wage increase.
The European Court of Justice has stated in the past, i.a. in the Hennigs and Mai cases (C-297/10 and C-298/10, 8 September 2011) that a criterion based on length of service or professional experience, but without resorting to age would, from the point of view of Directive 2000/78 (non-discrimination), is a legitimate wage policy, as the Court accepts that relevant professional experience allows workers to better perform their work. Therefore, wage scales on the basis of seniority (seen as length of service or professional experience) are allowed.
However, the sectoral Joint Committee no. 200 (the residual committee for white-collar employees, which lays down sectoral collective agreements for around 400.000 employees) had stretched the concept of seniority too far in the eyes of the Labour Court. Specifically, a collective agreement, interpreted as relevant professional experience, any professional experience in any profession (even if completely different than the occupied function in the current company) of any nature (also small part time jobs) and equated periods of incapacity with actual professional experience, like absences due to illness, accidents, unemployment and thematic leaves.
In the specific case before the Labour Court, it became clear that the employee who demanded to be paid according to a higher seniority level, actually did not have much relevant professional experience which would enable him to perform his work better. At the start of his employment he even had to follow additional training.
Therefore, the Labour Court of Leuven dismissed his claims to be paid according to a higher seniority and declares the collective agreement non-applicable as it deems its provisions illegal in light of the anti-discrimination Directive 2000/78, because it awards a higher wage on the basis of a seniority which is so broadly defined that it forms an indirect discrimination on the basis of age.