“We reach out to the employers in the chemical industry”

Judge says that executives are also entitled to social dialogue

Some good judicial news! On 13 January, the Labour Court of Antwerp ruled that executives are also entitled to social dialogue via trade union delegation. The judgement hopefully puts a stop to a long-standing tradition of discrimination. In quite some sectors and enterprises, executives are excluded from social dialogue.

3M representatives Nancy Lommelen and Gert Hooftman set the ball rolling approximately 5 years ago. “After several attempts to make trade union work possible for executives in consultation with the management, they dared to enforce the claim legally. That is quite something. Taking legal action against your employer is not that simple. Nancy and Gert stuck their necks out in the principle case that had been going on in the chemical industry for years. We cannot thank them enough for that,” Koen De Kinder says gratefully. In his position of trade union secretary, he was involved in initiating the procedure at the time. In the meantime, Inge Paeshuys has replaced him as trade union secretary at 3M.

How did you learn about the judgment?

Koen: The lawyer called me while I was driving. I put my car at the side of the road for a moment, because the judgment, which proved us right along the line, made me a little emotional. After 4 years of legal action, that judgment was an enormous boost. And most of all: the opposite would have been rather unpleasant. Not only for us, but definitely for Nancy and Gert, who had stuck their necks out for us. Unfortunately, we have not been able to celebrate our victory, due to the coronavirus. We will definitely celebrate someday.

Why is this judgment so important?

Inge: Companies create more and more executive functions, thus eroding the dialogue. 150 blue-collar workers, 30 white-collar workers and 120 executives work for 3M. So, almost half of the staff is, or was, excluded from the social dialogue. Once in a while, a CLA also applied to the executives, but they were not able to enter into collective agreements with the employer. When we wanted to consult with the executives, the management called in the help of the employers’ federation Essenscia, who did not want any executives in the trade union delegation.

The judgment only concerns 3M. This does not have any legal consequences for other companies.

Koen: That is true. However, the importance of it goes beyond this one company. The judgment does not focus on the specific situation of 3M. Moreover, there had been a similar arrest before. The Labour Court of Mons issued an identical judgement several years ago. That judgment did not receive a lot of attention in the north of Belgium. This time, a judge in Antwerp says the exact same thing. Employers now know that two judges have decided in principle that executives are also employees, with equal rights. In both cases, it is a fundamental judgment. That is an advantage for us when we insist on social dialogue for executives with any other employer. It is not our intention to take legal action against every company right now. However, we do want to enter into a dialogue with the companies.

What topics do executives want to put on the agenda of the social dialogue?

Inge: It depends on the company. At the moment, we do not have a list with all the demands. The demands, however, often concern transparent wages, work-life balance, disconnection, etc. We will now start conversations in the companies with our executive delegates to explore what this could mean to them. Most of all, we want the employer to listen to the specific concerns of the employees with an executive status. We want to enter into collective agreements in all transparency. We want to get rid of arbitrariness. We want a collective basis that counts for everyone.

That demand is not that unreasonable, is it? Then why do Essenscia and the employers keep resisting?

Inge: They want to keep the possibility to reward their staff on an individual basis. Recently, a company in Antwerp did not assign the index for executives collectively but divided it through individual bonuses. They are afraid that they will no longer be able to do that in the future. They do not realise enough that this wage policy could feel unjust to many executives, especially if ever larger groups of white-collar workers are granted an executive status. In another company, a whole group of executives recently asked to become white-collar workers again. The status of a white-collar worker gives them more security about their salaries, compared to this ‘higher’ executive status.

We want to make dialogue with executives possible in the entire industry. We want to look for solutions to mutual concerns, together with the employers.

Does this judgment guarantee that the employers will now be convinced to listen to the executives’ concerns?

Koen: Nothing can ever be guaranteed. You can never force employers to negotiate, if they do not want to reach an agreement. The employers can still stand their ground on topics they do not want to discuss. Nevertheless, the judgment gives us new possibilities. Of course, 3M has not changed its vision all of a sudden. The dialogue still needs to be developed. We do not want to see the tension escalate, of course. We want to reach out and prove that dialogue is better for all parties.

That does not only apply to 3M, I suppose?

Koen: Indeed, that applies to other employers too. We do not just want to inform companies. We are trying to make the judgment as widely known as possible. Other articles about this topic have been published in legal magazines and we have notified the payroll service providers. We want to make the judgment widely known. We definitely want to enter into dialogue with Essenscia as well. They also need to understand that their point-blank refusal is no longer acceptable. They have entered into dialogue with large companies from the industry, to figure out how they can respond. We want to make dialogue with executives possible in the entire industry. We want to look for solutions to mutual concerns, together with the employers. We are convinced that social dialogue is the best tool to achieve this goal.

It is a fundamental judgment. Employers now know that two judges have decided in principle that executives are also employees, with equal rights.”