The Delhaize case - Terminate a collective labour agreement, is it legal ? (Trends 23-2-2023)

Delhaize, terminating a company collective labour agreement, is it legal? What consequences?

This Thursday, February 16, 2022, Delhaize announced that it was terminating the collective labor agreement currently in force regulating the organization of stores and in particular the functions, tasks and hours of staff and stores. According to the Delhaize spokesperson, this cancellation was necessary to conclude a new agreement.

The opportunity to revert back on collective labor agreements under Belgian law and on how to terminate it, already emphasizing the rather rare or even extremely rare nature of such termination.

A collective labor agreement can be concluded at the level of the company between the employer and one or more representative organizations of workers, i.e. the CSC, the CGSLB or the FGTB (only one is enough), at the sectoral level, i.e. a joint committee or at the national level within the National Labor Council.

It is an ambivalent instrument because although it is basically a form of contract between employers and employees (represented by trade unions), this agreement is given by law a special status in that it includes so-called “normative” provisions, ie provisions providing for a rule intended to apply to a group of people, including workers not affiliated to the signatory organization.

The CLA must abide by the hierarchy of labor law legal sources (the corporate CLA cannot be contrary to sectoral, national CLA's or even the law and prevails over the individual employment contract), must contain certain mandatory and be registered with the registry of collective labor relations of the ministry of employment.

If the CLA is entered into for a fixed term with the option of termination - which is not an obligation - or for an indefinite period, it must provide for the time limit and the applicable terms of termination (for example by registered letter taking effect within three days of dispatch).

If an employer wishes to modify a company CLA, in particular to take into account the evolution of socio-economic constraints, to modify its organization or even to reduce its costs, it will generally enter into a discussion with the workers' representatives in order to agree on a new CLA replacing the old one or to record modifications in a modifying CLA.

However, if, as probably in the case of Delhaize, the desired changes are so substantial that obtaining an agreement from the workers' representatives proves impossible or too costly in terms of compensation, the employer will sometimes have an interest in terminating the CLA in progress. At the end of the agreed notice, it will disappear - noting however that the individual rights resulting from the CLA are incorporated into the employment contracts unless the parties have derogated to this effect from the law - thus leaving the field to totally open negotiations.

Suffice to say, this scenario is quite rare and considered both by worker representatives and even by the ministry as evidence of poor consultation or very significant tensions. We can almost speak of an atomic bomb, putting the whole discussion on the working conditions covered by the CLA terminated flat.

However, and we can clearly see the contractual nature of a CLA, like any contract, it sometimes happens that terminating the old one is the only way to renegotiate freely for the future. The strategy, although violent, is perfectly legal.

Christophe Delmarcelle in Trends (23-2-2023)