- 20 Nov 2012
If the legal conditions are met, it is possible for a separate representation of executives to exist in the Works Council. No similar system exists with regard to the Committee for Prevention and Protection at Work. According to a recent judgment of the Constitutional Court, this situation is not discriminatory.
If a company employs at least 15 executives ('kaderleden'/'cadres'), then they can elect a representative for executives in the Works Council on the basis of an election list dedicated to executives. However, no such distinct representation has been foreseen for the executives with respect to the Committee for Prevention and Protection at Work. For this social body, the executives who are election candidates are put on the electoral list of the white-collar workers.
The National Confederation of Executives ('NCK'/'CNC') drew attention to this situation since it believes the executives form a distinct socio-professional group. According to the Confederation, the above situation constitutes a violation of Articles 10, 11 and 23 of the Constitution, of the revised European Social Charter and of the ILO Convention concerning the Promotion of Collective Bargaining.
In a judgment of 14 November 2012, the Constitutional Court judged that this situation is not discriminatory. The Court emphasized that the competencies of the Works Council justify a separate representation of the executives. In contrast, the Court is of the opinion that this is not (in the same manner) the case with regard to the competencies of the Committee for Prevention and Protection at Work. Indeed, at this level the position of the executives is not that different from the position of other white-collar workers. Furthermore, at the level of the Committee for Prevention and Protection at Work, they can present themselves as candidates and they can vote on the electoral list of the white-collar workers. "vote on the electoral list" is not clear
Finally, the Court recalled that the absence of a separate representation does not imply that their interests are not taken care of, since the employee representatives represent all members of the personnel.