The general rules for category delineation are known: a category must be open, objective and reasonably justified (cf. the rules contained in the WAP – see below).
The category must be accessible to everyone who fulfils the affiliation conditions. In principle, defining a ‘closed’ group is not allowed (except in the case of a restructuring).
Objective and reasonably justified
The affiliation conditions of the supplementary pension scheme must not be discriminating.
Given that the problems surrounding discrimination are extensive, we do not discuss them further in this article.
The Explanatory Memorandum to the WAP gives a number of examples of categories that are always permissible. These are the categories adequately defined in the law of 3 July 1978 on contracts of employment, in the law of 20 September 1948 concerning the organisation of trade and industry and in the legislation on employees’ councils and the committees for prevention and protection at work.
However, there are also categories which are defined in a collective labour agreement (a generally binding collective labour agreement or other, e.g. a sector-collective labour agreement or a collective labour agreement concluded within the company).
How do the pension institutions (specifically insurers) look at those categories when implementing the scheme? Are collective labour agreement categories automatically permitted or do insurers verify whether the general rules discussed above have been fulfilled?
A fairly broad consensus exists among insurers not to accept categories stipulated in a corporate collective labour agreement automatically. For categories in collective labour agreements declared generally binding (e.g. sector collective labour agreements), there is a tendency to approve them automatically. However, this involves the minority of collective labour agreements concluded.
If the insurer does not accept a category, the agreement in the collective labour agreement regarding the supplementary pension cannot be implemented. In that case, the insurer regards the category as discriminating and will refuse to cooperate in its implementation.
In view of the supervision of conformity, for corporate collective labour agreements, it is therefore advisable to involve the insurer proactively in the negotiation process. Certainly if the collective labour agreement contains a specific category, which is (also) used in the supplementary pension scheme.
For that reason, we advise you to involve your account manager as early as possible in the discussions about delineating categories. He or she can then consult proactively with the insurer in order to assess the acceptability of the category to be employed before the collective labour agreement is concluded definitively. Since the concept of discrimination is an evolving notion, this approach is also appropriate for renewals of collective labour agreements.
In this way, you avoid problems later on, namely that, after the collective labour agreement has been concluded, the insurer might conclude that the category employed is not acceptable to it in the light of the statutory requirements in respect of equal treatment (ban on discrimination).
Contact your Employee Benefits account manager for more information on this subject.