Collective Labour Agreement: CLA

CLA: who is/are bound by it?

In general, a CLA only applies to the companies and employees represented by the parties that have concluded the CLA. This means that the CLA applies to:

– the employer who enters into the CLA or, if one or more employers’ organisation(s) enter into the CLA, the employers who are members of that or those employers’ organisation(s); and

– employees who are members of the trade unions which have concluded the CLA; if

– the employers and employees fall within the scope of that CLA, in other words, if the CLA is intended for them.

If these conditions are met, the employer and employee are bound by a CLA.

CLA: terms of employment for the employment contract

If an employer and employee are bound by a CLA, the agreements and terms of employment contained in that CLA apply to the employment contract between employer and employee. This means that the agreements and terms of employment in the employment contract of those employees may not be to the detriment of the agreements and terms of employment contained in the CLA. If this is the case, the terms of employment from the CLA will automatically apply. The agreements in a CLA therefore take precedence over the agreements in an individual employment contract. The provisions of the CLA form part of the individual employment contract.

The Article 13 employee

If an employer is bound by a CLA, he must also apply that CLA to (the employment contract of) employees who are not members of a trade union that is a party to the CLA in question. However, if the employer does not do so, the employee cannot enforce that application. Only the trade unions can do such. After all, they are the contracting parties to the CLA.

Incorporation of the CLA: the incorporation clause

Many employers who are bound by a CLA do not know exactly which employees are and which are not members of a trade union. These employers therefore do not know who is and who is not bound by the CLA. In view of this – but also in view of the obligation towards the article 13 employee [Linkje naar vorige alinea opnemen] – for the sake of convenience, an incorporation clause often appears in the employment contract: a clause that stipulates that the CLA applies to the employment contract.

There are two types of the incorporation clauses: a dynamic incorporation clause and a static incorporation clause. A dynamic incorporation clause declares not only the current CLA applicable to the employment contract, but also the future versions thereof. A static incorporation clause only considers the CLA at the time the employment contract is entered into, to be applicable.

Standard and minimum CLA

If the parties to a CLA have agreed with each other that an employment contract may not deviate from (parts of) the CLA, in whole or in part, we speak of a standard CLA or standard CLA provisions. If the employment contract nevertheless deviates from the CLA, those agreements shall be invalid. In that case, the terms of employment out of the CLA shall apply.

If the parties to a CLA have agreed with each other that the CLA or provisions from the CLA may be deviated from in favour of the employee, then we speak of a minimum CLA or minimum CLA provisions. This means that at least these agreements should be set out in an employment contract, deviating in favour of the employee can and may be done

Declaration of universally binding (AVV)

Parties that are bound by de branch CLA may request the Minister of Social Affairs and Employment (SZW) to apply that CLA to the entire industry, including employers and employees who are not members of the employers’ organisation(s) or trade union(s) that are party to the CLA.

If the Minister agrees to this request, the CLA in question will be declared universally binding, i.e. AVV. As a result, employers and employees who work in a certain industry, but are not members of the parties to that CLA, may still be bound by that CLA. As explained above, the AVV CLA only applies if both the employer and the employee falling within the scope of that CLA.

After-effects

A CLA is always entered into for a fixed term, often one or two years. Once that period has expired, employers who are bound by the CLA must continue to apply that CLA. This must be done until a new CLA has been concluded, which can be done with retroactive effect. This is because the provisions of the CLA have become part of the employment contract. This is called after-effect. The period between an old, expired and new CLA is referred to as the CLA-free period. In that period, the employer and employee may make (new) agreements with each other, even if they deviate from the expired CLA. Please note! If a new CLA is concluded – and this can therefore take effect retroactively – then the new CLA must be complied with.

Acquired right

An AVV CLA cannot have any after-effects. However, an employee can invoke a provision from an expired AVV CLA if this has become a so called acquired right during the AVV period. A frequently used example is the continued payment of wages in the event of incapacity for work. An employee who becomes ill may, for example, be entitled to 70% continued payment of wages on the basis of the employment contract, while the AVV CLA entitles him/her to 100% continued payment of wages. At the end of the AVV period, the employee would, in general, fall back on the employment contract, but he can take the position that the 100% continued payment of wages has become an acquired right and that this 100% continued payment must be applied.