Van Olmen & Wynant just recently had the honour of hosting a new Employment Forum at the headquarters of MIVB/STIB, the public transport operator of Brussels. The Employment Forum, organised with the support of the Belgian Institute of Company Lawyers, was attended by over 60 HR and legal professionals. The topic was “Positive Discrimination”, in light of a new Royal Decree of 11 January 2019 on the conditions for positive actions. Speakers were Johan Claes, Employer Branding & Sourcing Manager of MIVB/STIB and Pieter Pecinovsky, Of Counsel at Van Olmen & Wynant, who is also connected to the Institute for Labour Law of KU Leuven and Invited professor at the UC Louvain.
First, Pieter Pecinovsky explained the theory with regards to positive action and positive discrimination. The main attention went to the introduction of a new Royal Decree in execution of the Discrimination Act of 2007, the Gender Act of 2007 and the Racism Act of 1981. These federal Discrimination Acts foresee articles that allow positive action measures on 4 conditions: (1) there must be a manifest inequality at the sector or company, (2) the removal of this inequality has to be an explicit purpose of the measures, (3) the measures have to be temporary and (4) they should not unnecessarily limit the rights of third parties. Lastly, the Discrimination Acts delegate the executive power to lay down the specific conditions for positive actions. After 12 years, the Belgian government has finally agreed upon such a Royal Decree that lays down these conditions. However, on 14 February, the Royal Decree of 11 January 2019 has not yet been published in the Belgian State Gazette.
The specifics of the Royal Decree are the following. First, the field of application of the Royal Decree is limited to the private sector. Second, there are two ways to introduce positive actions: with a collective bargaining agreement or with an accession instrument (the Royal Decree will have a mandatory template as annex). The Royal Decree also establishes a consultation procedure (of the workers) for the accession instrument. After the introduction, the Minister of Work will have two months to approve the positive action, based on its content. According to the Royal Decree, the substantive conditions for positive actions are:
1° the existence of a manifest inequality within the sector of industry or the company. The evidence for this inequality can be delivered by all means.
2° the definition of the objective and the concrete elaboration of the positive action:
- must aim to eliminate inequality by achieving equal opportunities
- be clearly defined and aimed at eliminating or reducing the problems underlying inequality
3° the expected duration:
- the positive action measure must be temporary
- should be withdrawn when the objective pursued has been achieved
- at the latest after a period of 3 years
4° proportionality: measures must be appropriate and necessary in relation to the objective pursued.
5° the guarantee that the positive action measure does not unnecessarily restrict the rights of others.
Next, Johan Claes applied the theory to the practice of MIVB/STIB. As a big public transport company, with over 9000 employees, it only counted 7,15% of female employees in 2001. Sensing the technicality of many of the functions within the company and the masculine image of bus, tram and metro drivers, the HR team had a difficult task to improve the share of female employees. However, with the help of a number of smart measures, the share increased to almost 11% in 2018. This is not the MIVB/STIB’s final target percentage, but the company is certainly on the right track. The positive actions they applied included focused media campaigns, the use of female ambassadors, adapted job descriptions and a ‘referral’ action, according to which an employee would receive a bonus of 500 euros if he or she would refer a job opening to a female friend, and if their recommendation were to be hired by the MIVB/STIB. More positive actions are expected in the future.