Newsletter 2026 – 03

In the journal Oriëntatie 2026, issue, pp. 98-108, a contribution by Steven Renette with the title “Determining the possession and use of alcohol and drugs in the workplace”.

Court of Cassation 23 March 2026, S.19.0047.F

A sectoral collective labour agreement that regulates the election of the trade union delegation may not exclude executive staff from participating in that election.

1. Summary. The establishment and status of the trade union delegation in companies falling within the jurisdiction of Joint Committee No. 209 for white-collar workers in the metal manufacturing industry are governed by a collective labour agreement of 6 February 1996. That collective labour agreement was declared generally binding by Royal Decree of 5 September 2001. That collective labour agreement excludes managers—being white-collar workers with a position for which no sectoral wage scale applies—from the elections. They cannot stand for election nor participate in the voting. In November 2015, the white-collar trade unions asked the management of Alstom that these senior white-collar workers also be allowed to participate in the election of the members of the trade union delegation. Alstom did not respond to the request and only allowed the “salary-listed” employees to participate in the election of May 12, 2016. ACV subsequently turned to the court asking for those elections to be declared null and void due to the invalidity of the collective labour agreement provisions and to order Alstom to rerun the elections and to also allow the managers to participate as candidates and in the voting. In other words, ACV asked the judge to declare a collective labour agreement (partially) null and void that it had itself co-signed. The court rejected that claim. The Bergen Labour Court declared the claim well-founded in a judgment of 15 March 2019. The court considered "that it is necessary to verify whether the general and abstract rules applicable to the dispute conform to the standards superior to them and, in the negative, to exclude the contrary provisions." It subsequently concluded that the 1996 collective labour agreement makes a distinction between two categories of white-collar workers without an objective and reasonable justification, which is contrary to Articles 10 and 11 of the Constitution. The court ordered Alstom to organize elections within a month with all white-collar workers as eligible voters and potential candidates, subject to a penalty of 500 euros per day of delay. Alstom appealed against that judgment to the Court of Cassation. Seven years and several social elections later, it knows the result. The appeal in cassation is dismissed. Alstom argued in cassation that the court may not review a collective labour agreement against the Constitution. In doing so, it referred to Article 159 of the Constitution: “The courts and tribunals shall apply general, provincial and local decrees and regulations only insofar as they correspond with the laws.” Moreover, the provisions of Articles 10 and 11 of the Constitution have no horizontal effect. The Court of Cassation refers in the first place to Article 9, 1° of the Law of 5 December 1968 on joint committees and collective labour agreements: “Provisions of an agreement that conflict with the mandatory provisions of laws, decrees and international treaties and regulations binding in Belgium shall be void.” Subsequently, the Court refers to the text of Article 159 of the Constitution (cf. supra). The central consideration of the Court of Cassation then reads: “It is a matter of the legal nature of the dispositions of the dispositions of the collective convention of the contraires of the supérieures norms, y compris la Constitution.”
2. And what about the judgment of 12 December 2022? In that judgment, the Court of Cassation ruled on a dispute that had arisen concerning a similar collective labour agreement of Joint Committee No. 207 for employees in the chemical industry dated 4 May 1999. In that collective labour agreement, the social partners excluded senior (“non-salary-scaled”) employees from participating in the trade union delegation. They also do not count towards determining the number of members of the trade union delegation. In October 2016, the trade unions appointed a trade union delegation of which those senior employees – managers – were also members. Referring to the 1999 collective labour agreement, employer 3M rejected those appointments. The trade unions subsequently turned to the court and demanded that a number of collective labour agreement provisions be declared null and void and that 3M be required to accept managers as union representatives as well. The Labour Court dismissed these claims because it lacked jurisdiction given the provisions of Article 578, 3° of the Code of Civil Procedure (cf. infra). By judgment of 13 January 2021, the Antwerp Labour Court of Appeal set aside this ruling and declared the claims of the trade union and several managers well-founded. 3M lodged an appeal in cassation. The Court of Cassation ruled on 12 December 2022 and set aside the ruling of the Labour Court of Appeal. In accordance with Article 578, 3° of the Code of Civil Procedure, the labour courts have jurisdiction over individual disputes concerning the application of collective labour agreements. The Court infers from this: “The labour courts have no jurisdiction to hear collective disputes that may arise with regard to the applicable collective labour agreements. Consequently, they cannot hear claims seeking to enforce an amendment to an existing collective labour agreement or to conclude a new collective labour agreement for a group of employees.
   (…) In order to determine his jurisdiction, the judge must therefore examine the actual objective pursued by the claims asserted by the parties.” It is clear from the demands made by the trade unions that their claim aims at a fundamental amendment to the arrangement agreed upon in that collective labour agreement for the group of employees employed by the plaintiff. It therefore concerns a collective dispute that is beyond the jurisdiction of the courts of appeal. The Court of Cassation therefore annulled the decision of the Labour Court of Appeal.
3. Contradiction? One judgment does not contradict another. In civil cases, it is up to the appellant in cassation to define the grounds for cassation (“resources”) and thus determine exhaustively the points of the contested judgment on which the Court of Cassation must exercise its supervisory function. The Court of Cassation does not conduct an ex officio examination of the appeal and does not raise any resources ex officio (see Article 1080 of the Code of Judicial Procedure). In the Alstom case, the lack of jurisdiction of the Labour Court and the Labour Court of Appeal was apparently not raised by the employer, so that the latter could not invoke a ground for cassation on that basis.
4. Conclusion. The conclusion therefore remains that, when trade unions or employees seek a fundamental amendment to a collective labour agreement with their claim, this concerns a collective dispute for which the court has no jurisdiction. This does not alter the fact that the judgment of 23 March 2026 is also very important. After all, it obliges the court of first instance, when assessing a collective labour agreement, to examine whether it is compatible with all higher legal norms, including the Constitution. Will this, for example, lead to the nullification of collective labour agreement provisions that constitute direct or indirect age discrimination?

Ludo Vermeulen, Partner lawyer
ludo.vermeulen@mploy.be