Fight against discrimination: positive actions now regulated!

Would you like to organise computer courses during office hours for employees over 50? Or set a quota for the recruitment of people with disabilities?

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.

What does the anti-discrimination regulation provide?

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:

• there must exist a state of manifest inequality;
• elimination of this inequality must be identified as an objective needing to be encouraged;
• the positive action measure must be temporary in nature and intended to be revoked once the objected aimed at is achieved;
• the positive action measure must not restrain the rights of others to no purpose.

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.

What are positive actions?

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:

• recruitment campaigns for specific target groups;
• targeted promotion of vacancies to specific target groups;
• support programmes for applicants during the course of their application process. This could mean, for example, that a company offers the opportunity to provide candidates from a specific target group with information or preliminary training explaining how to apply successfully for a job at the company.

How to introduce a measure of positive action?

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]

What must be stated in the positive action plan?

The positive action plan (established either by a collective labour agreement or by a deed of accession) must contain the following information:

1. The existence of an apparent inequality within the scope of the Joint Committee, the branch or the company;
   
   Proof of this can be provided by all available means.
2. The definition of the objective and the concrete impact of the positive action.
   
   It should aim to eliminate inequalities by achieving equality of opportunity.
   
   The objective must be clearly defined and aimed at eliminating or reducing the problems at the root of inequality.
3. The expected duration of the positive action.
   
   The measure of positive action must be temporary and must be withdrawn when the pursued objective has been achieved and at the latest after a period of 3 years.
4. The positive action plan should meet a proportionality test.
   
   This means that the measures must be appropriate and necessary in relation to the pursued objective.
5. Ensuring that the positive action measure does not unduly restrict the rights of others.

Adoption of the positive action plan

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.

Important!

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.

 

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[1] These are the following conditions:

• the Act of 10 May 2007 to combat certain forms of discrimination (= 'the Anti-Discrimination Act');
• the Act of 10 May 2007 amending the Act of 30 July 1981 to repress certain acts inspired by racism and xenophobia (= ‘the Race Discrimination Act’);
• the Act of 10 May 2007 to combat discrimination between women and men (= 'the Sex Discrimination Act').

[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:

• under the ‘Anti-discrimination Act’: age, sexual orientation, marital state, birth, wealth, religious or philosophical convictions, political convictions, trade union convictions, language, current or future state of health, a disability, a physical or genetic characteristic and social origin;
• under the ‘Race Discrimination Act’: nationality, supposed race, skin colour, ascendance and national or ethnic origin;
• under the ‘Sex Discrimination Act’: sex.
  
  The criteria for pregnancy, childbirth, maternity and gender reassignment are assimilated into the gender criterion.

[5] The drawing up procedure for the act of accession is as follows:

• The employer must notify all employees of the draft act of accession.
• For a period of 15 days starting from the day on which the draft act of accession is handed over to the employees, the employer must keep a register at the disposal of the employees in which they can record their comments individually.
  
  Within the same period, the employees can also communicate their comments to the social legislation inspectorate by duly signed letter. Their names may not be communicated or disclosed.
• At the end of this period, the employer shall send the register for inspection to the above-mentioned official, who shall immediately acknowledge receipt thereof.
  
  If no comments from the employees have been communicated to him and the register contains no comments, the drawing up procedure shall be deemed to have ended on the 15th day following the day on which the draft deed of accession was handed over to the employees.
  
  If comments from the employees have been communicated to him or if the register contains comments from the employees, he shall communicate them within 4 days to the employer who shall communicate them to the employees. The official shall try to reconcile the divergent views within a period of 30 days.
  
  If he succeeds, the procedure for drawing up the deed of accession will be closed on the 8th day following the day of reconciliation.
  
  If he fails, the official shall immediately send a copy of the report of non-reconciliation to the chairman of the competent Joint Committee.
  
  The Joint Committee shall make a final attempt at reconciliation at its next meeting.
  
  If it fails to do so, the dispute shall be settled by the Joint Committee. Its decision shall only be valid if it has received at least 75 % of the votes cast by each of the parties.
  
  If the Joint Committee is not active for a particular branch of activity, the official brings the matter before the National Labour Council.
  
  The National Labour Council appoints the Joint Committee, under which employers with a similar activity fall, to decide on the dispute.
  
  The decision of the Joint Committee is notified by the secretary to the employer within 8 days following the decision.
• The deed of accession must be deposited with the registry of the General Directorate for Collective Labour Relations of the Federal Public Service Employment, Labour and Social Dialogue.
  
  The registry shall verify whether the deed of accession has been drawn up in accordance with the compulsory model and whether the information referred to in the preamble to that model has been correctly completed. If this is the case, the deed of accession is declared admissible.