People Aged 65 and Over and the Continue-To-Work CAO. Age Discrimination?
A discussion of Equal Treatment Commission dated 10 August
2009, JAR 2009/236
Age Discrimination
The Act on Equal Opportunities for Workers because of Age
(Wet gelijke behandeling op grond van leeftijd bij de arbeid
(WGBLA)) entered into effect on 1 May 2004 and is based on a
European Directive. This act forbids, inter alia, to discriminate
people on account of their age when entering into or terminating an
employment agreement. A frequently asked question is, for instance,
whether it is possible to terminate an employment agreement because
of reaching the age of 65. The WGBLA stipulates that the
termination of an employment agreement because of reaching the
state retirement age does not constitute age discrimination. The
Equal Treatment Commission (Commissie Gelijke Behandeling
(CGB)) tests whether there is age
discrimination.
The Facts in the Judgment
The Association of Continue-To-Work Employers is an employer
organization that attends to the interests of employers who want to
employ employees aged 65 and older or employees who are enjoying
pre-pension. For these purposes, the Association has concluded a
Collective Bargaining Agreement (CAO) with the union LBV. In this
CAO, the so-called Continue-To-Work CAO (Doorwerk-CAO),
specific employment conditions have been included for
'pensioners'. For example, pursuant to this CAO it is
possible time and again to conclude employment agreements for a
definite period of time without an employment agreement for an
indefinite period of time arising. The Association has also
incorporated a B.V. from which it seconds 'pensioners' to
employers. The Association and the LBV have requested the CGB to
render an opinion on their own acts. They want to know whether the
fact that the CAO only applies to retired employees constitutes
forbidden discrimination on account of their age, and whether
application of the concrete employment conditions of the
Continue-To-Work CAO is not in conflict with the
WGBLA.
The Equal Treatment Commission
In the opinion of the CGB, the discrimination on account of age
that is being made because the Continue-To-Work CAO only applies to
pensioners, is justified. The objective of the Continue-To-Work CAO
is to offer an employment conditions framework in those situations
in which no other CAO or employment conditions regulations apply.
This objective is consistent with the interest that the government
attaches to the furtherance of employment participation of the
elderly and with the objective of the WGBLA to fight discrimination
of the elderly on the labor market. The parties have furthermore
convincingly argued that employers have cold feet when it comes to
employing 'pensioners' and that the Continue-To-Work CAO
might take away this fear. The situation may occur, however, that
the 'pensioners' are treated less favorably than the
younger employees with the same employer, for whom better
employment conditions apply than the employment conditions of the
Doorwerk-CAO. This comparison can only be made if the younger
employees and the 'pensioners' work for the same employer.
Since this information is lacking in these proceedings, such a
comparison cannot be made.
Tips:
- The normal laws and regulations apply to employees who
continue to work after the age of 65. For instance, in the
event of sickness 104 weeks salary must be continued to be
paid, normal dismissal law applies and the fourth fixed-term
employment agreement is by operation of law an employment
agreement for an indefinite period of time.
- The Continue-To-Work CAO is a CAO for employers who want to
employ pensioners. This CAO stipulates, for instance, that
contracts for a definite period can be concluded without an
employment agreement for an indefinite period being created,
which, after all, can be determined in a CAO.
- The Continue-To-Work CAO may constitute age discrimination
if the pensioners are treated differently than younger
employees employed with the same employer. This has to be
tested in each individual case.