In the 2016 social election process, Younity has succesfully assisted one of its clients, a major international energy provider, in its defence against a claim that was simultaneously initiated by the three representative unions ACV, ABVV and ACLVB before the Brussels and Ghent labour courts.
The activities of the energy provider are spread over several production sites at locations in both the Flemish and Walloon region. Sales, support and administrative services are located in Brussels. In view of the location of said activities, the legal entity comprises 3 technical business units (North – South – Brussels) for the safety commitee election process.
On the basis of a sector level collective bargaining agreement, employees having reached a certain age are placed in garden leave until they are eligible for early retirement, meaning that they remain on the payroll but are no longer requested to perform any activity whatsoever for their employer. The relationship with their employer during the garden leave is therefore of a purely administrative nature and the SPOC for garden leave employees is the HR department based in Brussels. There is no further link whatsoever with the operational site where the employees previously performed their activities.
During their active career, the relevant employees were placed on the voters’ lists of the business unit where they performed their activities i.e. North/South. Once in garden leave, the energy provider appreciated that these employees should belong to the ‘administrative’ business unit in Brussels, in the absence of any factual working place.
Although employees in both linguistic regions were impacted, surprisingly enough the employer’s view was challenged by the Flemish unions only (perhaps due to the fact that, contrary to the Walloon region, in the Flemish region the transfer of the garden leave employees to the administrative business unit resulted in a reduction of the number of available mandates …?). The unions’ main argument was that the only relevant criterion to determine the applicable business unit should be ‘the employee’s former place of employment’.
The Ghent labour court – that ruled in the two proceedings – did not share the unions’ view and confirmed that the garden leave employees should stay on the list of the Brussels’ business unit.