2009 Annual Survey of violations of trade union rights - Belgium
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Belgium, 11 June 2009, available at: http://www.refworld.org/docid/4c52cb0028.html [accessed 26 December 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Attacks on the right to strike intensified. Some Belgian employers have not been respecting the "gentlemen's agreement" and have used lawyers to oppose workers' protests.
Trade union rights in law
Freedom of association: Workers have the right to form and join unions of their choice. The law does not require trade unions to register. However, every major conflict has been accompanied by attempts to force trade unions to acquire legal status.
A 1991 Act grants special protection to workers' representatives in works councils and committees for prevention and protection at work. In addition to financial sanctions, the law provides for the possibility, but not the obligation, of reinstating workers who have been dismissed for their trade union activities. Trade union representatives who are not members of these two bodies have a lower level of protection.
Workers from small companies have been denied the right to collective representation for a long time due to opposition from employers' organisations and managers of SMEs. In April 2008, following a ruling of the European Court of Justice and an agreement between trade unions and employers' organisations, the law transposing the EU framework directive on workers' information and consultation rights was finally adopted. The Law deals with companies employing between 50 and 99 workers. The deal concluded in the National Labour Council also provides for the right to information and consultation in companies which employ fewer than 50 people and have a trade union delegation.
Companies with between 50 and 99 employees will have to provide information to and consult with the Committee for Prevention and Protection at Work. Trade union delegations in companies with less than 50 employees are given the right to receive important information related to working conditions, labour costs and company's economic performance. The situation remains problematic for the sectors where there is no trade union delegation. Trade unions have concluded that, regardless of these improvements, workers in SMEs are still insufficiently represented.
Right to collective bargaining: The right to collective bargaining is recognised and widely exercised.
Right to strike: The right to strike is recognised. However, legislative authorities have intentionally refrained from defining the scope of the right to strike.
Trade union rights in practice and violations in 2008
Background: In addition to the price inflation and the economic crisis that Belgium has faced along with the rest of Europe, the country has also experienced severe political tensions. In December the government collapsed again. The social partners managed, nevertheless, to negotiate a new cross-sectoral agreement for the years 2009-2010 including: a recovery plan that was taken over by the new Government, upcoming branch and company level wage increases and substantial improvements to social security benefits, with a special focus on temporary unemployment benefits. Unions organised large-scale collective actions to push for a Government action plan to tackle the increase in the cost of living (including energy prices).
Circumventing the 1991 Act: Workers' representatives in works councils and committees for prevention and protection at work are protected against dismissal and discrimination by the 1991 Act. They can only be dismissed for two reasons: serious misconduct or economic and technical reasons. In both cases their employer has to follow a special procedure. When an employer does not respect this procedure, the worker's representative can ask for her/his reinstatement.
In practice, employers prefer to pay out legal entitlements, even large ones, rather than to respect the special procedures or reinstate workers' representatives dismissed as a result of their union activities. The law does, in fact, allow employers to deny a representative's request for reinstatement. In that situation, the labour court can only force the employer to pay additional compensation.
The 1991 Act provides that, during the procedure, the employment contract of a workers' representative can only be suspended by the labour court for well-founded reasons. In practice, labour courts do suspend the employment contract, so the exception has become the rule. Some employers even suspend the employment contract themselves, in breach of the law.
Huge wave of legal claims aimed at ending some forms of collective action: As of October 2008, companies such as Carrefour, Cytec, DELI XL, BIG and Ideal Floorcoverings, N-Allo, Elia, Sibelgaz, Eandis and UCB flooded courts with petitions to ban certain forms of collective action, such as picketing. In the last months of the year, at least 18 legal cases were being processed. Petitions are accompanied by requests that strike-related acts be liable to fines if the ban is disregarded. As a consequence, any worker who decides to ignore such a ban, for instance by maintaining a picket line, ends up facing a heavy financial penalty. So far, it should be said, employers have not actually enforced the financial aspects of such rulings. The police are requested to enforce the Court's decisions by dispersing trade union pickets, checking the identities of the participants and taking them into the police station, and so on.
The courts usually decide that preventing employees or third parties wishing to enter a company building from doing so is prohibited, irrespective of whether or not any violence has been used. Some judges also agree to issue "preventive" orders in the absence of any concrete indications that such acts might be committed.
There is no doubt that such judgements discourage workers from fully exercising their right to collective action and have significantly undermined the right to strike. They are considered by the unions and the Human's Rights League to be in breach of the case law of both the ILO Committee on Freedom of Association and the European Committee of Social Rights (ECSR) of the Council of Europe.
This is all despite the fact that a "gentlemen's agreement" signed by the social partners (in March 2002) stipulates that the employers will avoid using legal procedures until all conciliation attempts have failed, whilst the workers agreed to respect the notice periods required for strikes. While trade unions have honoured their side of the deal, employers have had fewer scruples about using legal procedures. Belgian trade unions have called on the Federation of Belgian Enterprises to resolve industrial conflicts through collective bargaining and not by intimidating workers.
The Carrefour case: In the autumn a conflict concerning the working conditions in the new Carrefour hypermarket in Bruges escalated into a series of pickets of Carrefour shops across the country. The management reacted by turning to the courts. The judges prohibited "all actions that would directly or indirectly disrupt or complicate the normal activities of Carrefour". Failure to comply would result in a EUR 1,000 fine. Police officers were called in to ensure that non-strikers were granted access to the stores: this resulted in clashes and some union members were taken away by the police. Trade unions submitted third-party objections to the courts. On 3 December, the court of Furnes upheld the trade union's position. More decisions are expected in 2009.
The Eandis case: Due to a dispute regarding equal pay for new and "older" workers in the gas and electricity sector, trade unions organised actions in various companies in the sector (N-Allo, Elia, Sibelgaz, Eandis). The employers reacted with a wave of legal proceedings. Trade unions members submitted third-party objections to the courts, but without success. As a collective agreement was signed, the trade unions did not appeal. However, Eandis had brought charges against some of the strikers and workers' representatives. A special meeting of the works council was then convened, which gave the police the opportunity to arrest three workers' representatives. At the time of their arrest they were not informed about the charges. Each of them was interrogated separately. The police used videotapes from the Eandis' security cameras which showed no evidence of misbehaviour by the workers' representatives. The workers were told that the way in which they had been treated had been explicitly ordered by the public prosecutor. The case is still open.
Demands for minimum service in the public services: Some organisations and political groups have been calling for a requirement to maintain minimum services during a strike. Some parties, belonging to the current government, issued a statement renewing their demand for the establishment of a minimum service in the transport sector in the event of a strike.
Surveillance: Unions are deeply concerned by proposed legislation establishing arrangements for collection of information by the secret services.