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Since 11 March 2019, the Royal Decree of 11 February 2019 laying down the conditions for positive actions provides a legal framework for these measures of positive actions.
According to the 'anti-discrimination regulation'[1], a direct[2] or indirect[3] distinction based on one of the protected criteria[4] never gives rise to the establishment of any form of discrimination when this distinction involves a measure of positive action, i.e. a specific measure to prevent or compensate for the disadvantages related to the protected criteria, with a view to ensuring full equality in practice.
Measures of positive action may only be implemented in compliance with the following provisions:
A royal decree was needed to set down the situations and conditions in which a positive action measure could be implemented. Failing this regulatory framework, employers could not deploy positive action measures to justify instituting a distinction in treatment between the workers within their businesses.
This Royal Decree is now published in the Belgian Official Gazette. It provides a legal framework for employers to introduce measures of positive action.
In a sense, a positive action is an exception to the prohibition of discrimination.
A measure of positive action can be defined as a measure aimed at a 'disadvantaged' group, whose members are carriers of a specific protected criterion, and which aims to reduce, eliminate or compensate for the disadvantages suffered by the group and related to the protected criterion, so that this group can participate fully in the labour process.
Some examples:
The measure of positive action should be included in a positive action plan. This plan should be drawn up either by a collective labour agreement or by an act of accession setting out the conditions for positive action.
In the latter case (drawing up an act of accession), the employer must fill in the model attached to the Royal Decree and follow a specific procedure.[5]
The positive action plan (established either by a collective labour agreement or by a deed of accession) must contain the following information:
The positive action plan (established either by a collective labour agreement or by an act of accession) must be submitted for approval to the Minister of Work.
He checks whether all conditions are met, as well as whether the positive action does indeed relate to one of the protected criteria.
In case the positive action plan is approved, it must be considered as conform to what is provided by the 'anti-discrimination regulation'.
The decision will be notified to the applicant within 2 months from the date of registration of the collective labour agreement or from the date of the declaration of admissibility of the act of accession laying down the conditions for positive action (see the last point of the procedure described in footnote 5). In the absence of notification within the prescribed time limit, the positive action plan will be considered to have been approved.
The employer may initiate positive action measures in forms other than those provided for in the collective labour agreement or the act of accession laying down the conditions for positive action. He may inform the Minister of Work of this.
Do you want to introduce a measure of positive action in your company? Please do not hesitate to contact Legal Partners via legalpartners@partena.be.
Source: Royal Decree of 11 February 2019 laying down the conditions for positive actions, Belgian Official Gazette of 1 March 2019.
[1] These are the following conditions:
[2] Direct distinction is defined as being the situation that arises where, based on one of the protected criteria, someone is treated less favourably than someone else is, has been or would be in a comparable situation.
[3] Indirect distinction is defined as being the situation that arises where an ostensibly neutral provision, criterion or practice is liable to entail, in relation to others, a particular disadvantage for those otherwise falling within one of the protected criteria.
[4] Such as:
[5] The drawing up procedure for the act of accession is as follows:
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