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Comments adopted by the CEACR: Belgium

ADOPTED_BY_THE_CEACR_IN 2021

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Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. The Committee previously noted the Government’s commitment to combating trafficking in persons through continuous adaptation of the national legislative and institutional framework against this crime. It requested the Government to continue its efforts and to provide information on the implementation of the Anti-Trafficking Action Plan (2015–19), the measures taken to ensure better identification and protection of victims and on prosecutions and convictions handed down under sections 433 ter to 433 novies of the Penal Code relating to trafficking of persons.
Implementation of action plans. The Government indicates that three action plans have already been implemented and that in 2020 an addendum specifically concerning child victims was added to the national action plan for 2015–19. A new action plan for 2021-2025 has been submitted to the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, which brings together all competent persons and coordinates national policy in this field. The Committee also observes that the Centre for Migration (Myria), as the independent national reporter on trafficking in persons, publishes an annual report assessing the evolution and results of the policy to combat human trafficking. In 2020, the report focused on the exploitation of domestic workers, with particular attention paid to the impact of the COVID-19 health crisis on the combat against trafficking in persons. Among the points made in the report is the need to continue awareness-raising activities for the public at large and to focus particularly closely on diplomatic domestic personnel.
Protection of victims. The Committee notes that the Government, apart from psychosocial and medical assistance, administrative support and legal aid to victims provided by the three specialized reception centres, has continued to take measures to improve protection of trafficking victims. For example, the latter now automatically receive a residence document valid for 45 days, rather than an order to quit the territory within 45 days. Moreover, the principle of not penalising victims of trafficking has been formally integrated into the Penal Code. The Committee also notes from the Myria’s 2019 report, that Myria has analysed and proposed improvements to the aid system for trafficking victims in areas including the right to information, access to specialized aid services, legal aid and participation in the criminal procedure, and compensation. The Government also refers to several legal rulings in which the courts awarded damages (for material and non-material prejudice) to victims who are party to civil proceedings in cases on human trafficking.
Prosecutions and penalties. In reply to the Committee’s requests related to repression of cases of trafficking in persons, the Government provides information on the training activities organized by the department responsible for trafficking in persons within the National Social Security Office (ONSS) for labour inspectors with regard to trafficking for economic exploitation. The Government also refers to inspection visits conducted with a view to detecting cases of trafficking for labour exploitation and in particular to targeted monitoring undertaken in sectors identified as presenting a risk. In 2020 these inspections concerned the hotel, restaurant and café sector and nail bars. These inspections have made it possible to refer a growing number of victims to the legal authorities in 2018, 2019 and 2020 (65, 82 and 156, respectively). The Government indicates that for 2017, 2018 and 2019 convictions made under article 433 of the legal code stood at 112, 127 and 113 respectively. Between 2016 and 2020, 1715 cases were brought before the criminal courts, 57 of which were for trafficking for sexual exploitation and 31 for labour exploitation. A total of 750 cases were dismissed, in large part for technicalities such as “insufficient charges” or “perpetrator(s) unknown”)
The Committee again welcomes the measures taken by the Government to combat trafficking in persons through a comprehensive and coordinated approach. It requests the Government to continue providing information on: (i) measures taken to continue to raise the awareness of the public and the competent authorities in identifying trafficking in persons for the purposes of both sexual and labour exploitation; (ii) the follow-up given to the recommendation of Myria in respect of improving the legal aid system for victims and their compensation; (iii) the evaluation of the implementation of the new national action plan conducted by the Interdepartmental Task Force for the Coordination of Action against Human Trafficking, as well as proposals formulated by the Task Force; and (iv) and the legal procedures engaged, judgments handed down in cases of trafficking and redress for victims.
Noting that the Government has not provided its first detailed report on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee requests it to provide this report at the same time as the report on the Convention, both in 2024.

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The Committee notes the observations of the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB), dated 25 August 2021, as well as the Government’s reply of 29 October 2021, which deal with issues examined in the context of the present comment. The Commission also takes note of the additional observations from the above-mentioned organizations received on 17 November 2021.
Article 3 of the Convention. Right of trade union organizations to organize their activities and formulate their programmes. Malicious obstruction of traffic (section 406 of the Criminal Code). In its previous comments, the Committee asked the Government to provide information on the application of section 406 of the Criminal Code and on the outcome of the criminal proceedings brought. The Committee notes that according to the Government there is consistent jurisprudence from which it can be inferred that when certain acts can be qualified as criminal offences detrimental to the security and freedom of all citizens (here, the criminalization of malicious obstruction of traffic), these cannot be purely and simply set aside for certain fundamental rights, but that this is however without prejudice to freedom of association. The Government emphasizes that the fundamental principle underlying section 406 of the Criminal Code is not detrimental to the right to strike or the free exercise thereof: the section is not aimed at these actions, but rather at all instances where road barrages are erected with malicious intent, regardless of the underlying motive. The Committee notes that the Government refers to the status of two cases in which the public prosecutor has brought criminal proceedings under section 406 of the Criminal Code in respect of trade union representatives who erected a road barrage in the context of strike action. The first case concerns acts committed during an inter-professional strike on 24 June 2016 against government policy in respect of pension measures; on this occasion, certain access routes to the Port of Antwerp were closed off, with a view to causing economic damage and encouraging the enterprises affected to put pressure on the Government. Regarding this case, the Government indicates that the Court judged that the deliberate act of obstructing traffic was sufficient to demonstrate the essential maliciousness of the action. Consequently, it is not necessary “that the perpetrator know, or ought to have known, that the act of obstructing the traffic could become dangerous”. The Government emphasizes that according to the Court: (i) “the mere fact that an offence is committed in the context of a strike or a demonstration does not remove the moral element of the offence, regardless of the motives for the action. Thus, the fact that an obstruction to traffic should be organized to support trade union demands does not necessarily prevent the act of obstructing traffic from being qualified as malicious within the meaning of section 406, first paragraph, of the Criminal Code”; and (ii) “under Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right to strike or the right to demonstrate are not absolute rights, and their exercise may be subject to restrictions, provided that the latter answer effectively to the general interest and cannot be considered to be excessive or intolerable actions detrimental to the very basis of these protective rights; the judge rules definitively on this matter, on the basis of the facts before him.”
The second case concerns acts committed during a day of strike action on 19 October 2015. The Government reports that about 300 demonstrators blocked a motorway viaduct in the Province of Liège, with serious consequences for public goods and for users (deterioration of the road surface and traffic jams which, in particular, prevented a surgeon from operating on a hospital patient who subsequently died). The Committee notes that in a judgment of 23 November 2020, the Liège Criminal Court convicted 17 trade unionists of malicious obstruction of the traffic (15 days’ imprisonment (suspended) and a fine of 300 Euros for the unionists and one month’s imprisonment (suspended) and a fine of 600 Euros for the union leaders) and that the union has appealed the decision. The Committee notes that, according to the FGTB, the CSC and the CGSLB, the approach adopted by the Criminal Court undermined the right to strike, since the mere fact of being present at one moment or another at a barrier point criminalizes the participants (the defendants had already asserted that they had gathered at a barrier that was already in place and that the action had been disturbed by rioters who were not connected with the union). The Committee notes that according to the trade union organizations the sentences pronounced will have serious consequences: they risk intimidating trade unions and discouraging trade union action and, on a personal level, they entail the establishment of a criminal record likely to have repercussions in terms of access to employment. The organizations also note that they have given rise to a press campaign assimilating trade unionists to thugs or common criminals. The Committee notes the information according to which, on 19 October 2021, the Liège Court of Appeal upheld the verdict issued by the Criminal Court, maintaining the prison sentences and imposing heavier fines. The Court of Appeal deemed the defendants guilty of deliberate obstruction of traffic and that the right to strike could not be used in defence. The Committee notes that the FGTB envisages appealing to the Court of Cassation.
The Committee notes the information provided by the Government and by the trade union organizations. It requests the Government to continue to provide information on the application of section 406 of the Criminal Code and on the outcomes of criminal prosecutions engaged, in particular the appeal before the Court of Cassation against the decision of the Liège Court of Appeal of 19 October 2021.
Individual declaration of participation in a strike. In its previous comments, the Committee requested the Government to provide information on the application in practice of: (i) the Act of 29 November 2017 on the continuity of rail transport service in the event of a strike, which required each member of staff in an operational category considered to be essential to declare his or her intention to participate in a strike by a determined deadline (72 hours’ notice, in line with the General Regulations on Trade Union Relations (RGRS)); and (ii) the Act of 23 March 2019 on the organization of prison services and the prison staff regulations, which allows for a similar procedure. The Committee noted that the procedure regarding the individual declaration of intent to strike was established in comparable terms, on the one hand, in the context of rail transport, which the Committee considers not to be an essential service in the strict sense of the term but rather a service of fundamental importance for which the establishment of a minimum service can be justified, and, on the other, in the context of prison services, which the Committee considers to be essential services in the strict sense of the term. The Committee considered that if the declaration of intent to strike could be justified in order to ensure that a minimum level of activity in the services in question is maintained, it is important to ensure that the implementation of such procedures, which could be used to weaken the collective action of workers and their organizations, does not result in any kind of interference in the actions carried out by the trade union organizations or in any form of pressure on potential strikers. The Committee noted that the Constitutional Court had rejected the appeal for annulment filed against the Act of 29 November 2017 in a ruling of 14 May 2020, considering that since a minimum of eight working days’ notice of a strike is required, staff members required to submit a prior declaration have sufficient time to take a decision on their participation in the strike, 72 hours ahead of it, and that such a procedure did not therefore entail disproportionate interference with the rights of the workers concerned.
The Committee notes that the Government recalls that the Constitutional Court, in its ruling of 14 May 2020 deemed it disproportionate, in light of the objectives pursued, to consider as a breach of discipline the fact that an agent fails to declare his intention not to participate in the strike and, therefore, to work. Regarding the practical application of the Act, the Committee notes the circular provided by the Government regarding continuity of the rail transport service, which applies to strikes initiated under the prior notice and consultation procedure for social conflicts, in conformity with the Trade Union Rules for the Belgian Railways (RGPS Pamphlet 548). By virtue of this legal framework, staff members belonging to operational professional categories considered to be essential by the management committees of Infrabel and the SNCB, whose presence is foreseen for the day(s) of the envisaged strike, are invited to make known their intention to participate or not in the strike, by means of a traceable procedure previously installed by the enterprises and made public through all internal channels of communication to the staff members concerned.
With regard to the Act of 23 March 2019 on the organization of prison services and the prison staff regulations, the Committee notes that the Government recalls that the Act sought and found a balance between guaranteeing the right to strike, on the one hand, and the organization of effective minimum services for the detainees, on the other, and for this reason, declarations of intention, treated confidentially, are required so as to be able to manage the strike in the prison and avoid it preventing provision of minimum services to detainees. The Committee notes the example of instructions provided to prisons in case of strike notice, which include checklists allowing the prisons to ascertain that the procedures are followed correctly. The Committee takes due note of all information provided by the Government.
Prison services. Resolution of conflicts. In its previous comments, the Committee noted the allegations by the above-mentioned trade union organizations concerning the Act of 23 March 2019 establishing a minimum service and the possibility of using a system of requisitioning staff in the case of a strike of more than two days. The organizations indicated in particular that any dispute concerning the negotiation of a minimum service should be resolved through an independent body, such as the judicial authorities, and not by the ministry concerned, but that under section 19 of the Act, if the competent advisory committee does not submit an operational plan in the three months following the entry into force of the Act, either because it has not taken a decision or because no agreement has been reached in the committee, the minister shall determine the services to be provided and the measures to be taken. The Committee notes the Government’s observation that sections 17 and 18 of the Act of 23 March 2019 set out the minimum service requirements for detainees and determine the persons whose access to the prison must be guaranteed throughout the duration of the strike, and that there is therefore no consultation on these points, already established by the legislator; however, to assure these services, the staff must be sufficient in number. This information is provided in the tables or service plans for each prison. The Government recalls in this regard that since the legislator wished to resolve matters insofar as possible by common accord, the “post planning” by prison was initially entrusted to local social consultations (that is, grass-roots advisory committees). If no agreement is reached at local level, another consultation is foreseen at a higher level (in the higher advisory committee). If no agreement is reached at that level either, the minister decides. The Committee also notes the Government’s indication, in respect of the consultation and decision process for the official tables, that: “finally, when no agreement was forthcoming through social dialogue, the memorandum with the plans for each prison was approved by the minister.” Noting the information provided by the Government to guarantee a minimum service, the Committee requests the Government to provide additional information on the compensatory guarantees or resolution mechanisms applicable in disputes in the prison services.

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The Committee notes the Government’s first report.
Article 5 of the Convention. National programme on occupational safety and health (OSH). Objectives, targets and indicators of progress. The Committee notes the National Strategy for Well-Being at Work 2016-20 and the report on its evaluation, which provides a summary of the actions undertaken in the context of the national strategy. It also notes that this strategy contains operational objectives linked to four strategic objectives to improve OSH practices in the country, such as healthy and safe work, strengthening participation in the labour market, and reinforcing prevention and the culture of prevention. The Committee further notes that the strategy and its evaluation report do not include specific qualitative indicators of progress or measurable targets. The Committee recalls that in its 2017 General Survey, Working together to promote a safe and healthy working environment, paragraphs 147–153, it stressed the importance of evaluating the past performance of national OSH programmes using a methodology based on clear targets and indicators of progress. In this regard, the Committee requests the Government to supply more information on the elaboration of qualitative indicators of progress that make it possible to evaluate to what extent the objectives of the national strategy for well-being at work are being achieved, as required by Article 5(2)(d) of the Convention. It also requests the Government to continue to supply information on the formulation and adoption of a new national strategy for well-being at work and on the consultations held in this context. It further requests the Government to send a copy of this strategy once it has been adopted.

ADOPTED_BY_THE_CEACR_IN 2020

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.
The Committee notes the observations of the International Organisation of Employers (IOE) and of the Federation of Enterprises in Belgium (FEB), dated 28 September and 1 October 2020, concerning issues raised in the present comment. It also notes the observations of the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB), dated 1 October and 9 November 2020, which, apart from referring to the issues examined in the present comment, denounce the lack of negotiation with trade unions regarding the adoption of measures to tackle the health crisis. The Committee requests the Government to send its comments on this point.
Article 1 of the Convention. Protection of staff delegates against anti-union discrimination. The Committee notes the allegations of the FGTB, CSC and CGSLB concerning an absence of adequately dissuasive penalties for abusive dismissal of staff representatives, and the Government’s reply in this regard, based on the Act of 19 March 1991, as amended in August 2002, which establishes specific dismissal procedures for employee delegates on workers’ councils and safety, health and workplace embellishment committees and for candidate employee delegates.
Article 4. Right to collective bargaining. Wage fixing. The Committee notes the observations of the trade union organizations on the Act of 26 July 1996 on employment promotion and the preventive maintenance of competitiveness, as amended by the Act of 19 March 2017. The trade union organizations indicate that the provisions of the Act result in the fixing of a maximum wage band that severely limits the possibilities for collective bargaining and does not really allow wage increases, not only on the national level, but also at the sectoral and enterprise level. The Committee notes that, according to the Government: (i) the goal of the legislation in question is to reduce the gap in wage costs with neighbouring countries in order to encourage the competitiveness of the country’s enterprises and the development of employment; and (ii) the mechanism for negotiating the wage band and wages has not been amended, and the role of the social partners remains critical in wage fixing. The Government explains that wage standards are determined by the Group of Ten comprising the executive bodies of the trade union and employers’ organizations, in the framework of the Interoccupational Agreement (AIP), based on the technical report of the Secretariat of the Central Economic Council (CCE). The Government indicates that: (i) the AIP has to be concluded before 15 January in odd-numbered years; (ii) the wage standard is then established through a collective labour agreement concluded by the National Labour Council (CNT), which is made obligatory by the King; (iii) if the social partners do not reach an agreement, the Government must summon them to a dialogue and formulate a mediation proposal; (iv) if no agreement is reached in the month following the dialogue, the King, by degree discussed by the Council of Ministers, shall fix the maximum band of wage cost increases for the two years that should have been covered by the AIP ; and (v) negotiations at the sectoral and enterprise level are then held, respecting the wage band determined at the interoccupational level. Therefore, in the Government’s view, the social partners play an important decision-making role in the wage fixing process, and the public authorities intervene only if they do not reach agreement. The Committee notes that an AIP was concluded for 2017–18, but that no agreement was reached for 2019–20 owing to an absence of unanimity in the Group of Ten, as had already been the case in 2013–14 and 2015–16. In this regard, the Committee recalls that the system had already been criticized by the FGTB, CSC and CGSLB in 2013. At that time, the Government explained that the system placed emphasis on the participation of the social partners and that, in the cases where the public authority had to fix the wage band due to a lack of agreement, it had followed the draft agreement concluded by the majority of the social partners. The Committee noted those replies. The Committee also notes that the IOE and the FEB emphasize that: (i) the social partners remain fully competent for negotiating wage adjustments and that the Government only intervenes on a subsidiary basis; and (ii) any such political decision is only valid for a limited duration. It applies for a maximum period of two years, after which the social partners regain their freedom of collective bargaining in each case. Noting the divergence in approach between the trade unions, on the one hand, and the Government and employers’ organizations, on the other, the Committee requests the Government to provide detailed information on the effect given to the provisions of the Act of 26 July 1996, as amended by the Act of 19 March 2017, so that it can assess their effects on the possibility of negotiating wages at any level.
Harmonization of the joint committees and workers in the platform economy. In its previous comments, the Committee noted the allegations of the trade unions that workers in the platform economy are excluded from the scope of the Act of 5 December 1968 governing the negotiation and conclusion of collective labour agreements, which implies that they are unable to participate in the negotiation of collective labour agreements. In this regard, the Committee noted the Government’s indications that the so-called “collaborative” economy, established by the Framework Act of 1 July 2016 and amended by the Act of 18 July 2018 on economic recovery and the strengthening of social cohesion, is a limited regime legally governed by a certain number of cumulative conditions. In particular, the activity must: (i) be provided through an approved platform that is also the intermediary for the payment for the service; (ii) be performed only by an individual for the benefit of another individual (delivery services to individuals of meals prepared by restaurants, for example, are excluded); (iii) be undertaken outside any occupational activity; and (iv) not result in compensation of over €6,250 a year. The Government also explains that: (i) when these conditions are fulfilled, the collaborative economy regime is applicable, as the services are provided outside occupational activity and any relation of subordination; (ii) in view of the limited amount of the compensation, the service providers are not in a situation of economic dependence in relation to either the approved platforms or those giving instructions; (iii) when the conditions for the collaborative economy regime are not fulfilled, the income is classified for tax purposes as self-employed income (resulting in the provider being subject to self-employed status), unless the provider proves that it is not occupational income (not subject to social security) or that the work is performed in the context of a relationship of subordination (subject to social security for employees); and (iv) if the work is performed in the context of a relationship of subordination, the whole body of labour law applies, including the regulations guaranteeing freedom of association, the right to organize and collective bargaining. The Government indicated that the self-employed may join bodies that defend the rights of self-employed workers, particularly in relation to Government authorities. The Committee noted that the information provided by the Government in reply to the allegations of the trade unions mainly related to people in the so-called “collaborative” economy (which, under the terms of the Act of 18 July 2018, consists of services of low economic value provided outside of occupational activity), which it distinguishes from other platform workers. However, the Committee noted that, according to the Government, platform workers not covered by the collaborative economy regime are by default considered to be self-employed, and that the provisions of labour law, including the right to collective bargaining, only apply if the work is performed in the context of a relationship of subordination. The Committee notes the information provided by the Government and trade unions (the FGTB, CSC and CGSLB) that the Constitutional Court, in Judgment No. 2020/53 of 23 April 2020, annulled the Act of 18 July 2018 at the request, inter alia, of the most representative workers’ organizations and a number of employers’ federations. Having been requested to issue a ruling on the question of the conformity of the tax- and labour-related aspects of the aforementioned Act with the constitutional principles of equality and non-discrimination, in that the Act establishes a difference of treatment (in tax- and labour-related terms) regarding the performance of activities in the context of associative work, occasional services among citizens or services in the collaborative economy, the Court considered, for each of the three activities, that this difference of treatment was unjustified. The Constitutional Court explains that “even though the uncertainty regarding correct classification may if appropriate justify the establishment of a separate status, such a status has already been created by the Framework Act of 1 July 2016. Moreover, this lack of clarity regarding correct classification does not constitute grounds, under the impugned provisions, for this status to qualify for total exemption from coverage by the labour legislation, social security scheme and tax obligations” (point B.7.7 of the Judgment of the Constitutional Court of 23 April 2020). The Committee also notes the Government’s indication that, pending a response from the legislature, income from associative work, occasional services and the collaborative economy will follow the ordinary tax and social security classifications and rules from 1 January 2021.
However, the Committee notes that the Government does not provide any information concerning the collective rights of platform workers that is new in relation to the information already communicated in 2019, namely that platform workers not covered by the collaborative economy regime are by default considered to be self-employed and that it is only if their work is performed in the context of a relationship of subordination that the provisions of labour law, including the right to collective bargaining, will apply.
Without prejudice to the legal classification applicable to the various kinds of platform workers, the Committee recalls that, in so far as all workers, with the only possible exception of members of the armed forces and the police and civil servants engaged in the administration of the state, are covered by the convention, the right to collective bargaining should also apply to organizations representing self-employed workers (see the 2012 General Survey on the fundamental Conventions, paragraph 209). The Committee also recalls that it is aware that the collective bargaining machinery applied in traditional labour relations may not be adapted to the specific circumstances and conditions of the work of self-employed persons. In view of the above, and duly noting the information sent on the Constitutional Court decision of 23 April 2020, the Committee requests the Government to provide information on the various organizational structures in the digital platform economy and on the way in which the workers concerned are able to organize and conduct collective bargaining. The Committee invites the Government to hold consultations with the parties concerned with a view to ensuring that all platform workers covered by the Convention, irrespective of their contractual status, are authorized to participate in a free and voluntary collective bargaining. Considering that such consultations are intended to enable the Government and the social partners concerned to identify the appropriate adjustments to make to the collective bargaining mechanisms to facilitate their application to the various categories of platform workers, the Committee requests the Government to provide information on any progress achieved in this regard and on any legislative measures adopted or contemplated further to the Constitutional Court decision of 23 April 2020.
Night work for e-commerce. The Committee notes the allegations by the trade union organizations that the Government, through the Framework Act of 25 December 2017 and without consultation with the social partners, has made possible the introduction of night and Sunday work in enterprises engaged in e commerce with the agreement of a single representative trade union, rather than all of them. The Committee notes that the trade union confederations express their disagreement in this respect with what they consider to be a use of collective bargaining for the purposes of deregulation. The Committee also notes the Government’s indications that, where the law requires the conclusion of a collective agreement at the enterprise level as a condition for the implementation of a measure, the legislator thereby wishes to prevent the employer from being able to unilaterally introduce the stipulated measure and to guarantee social dialogue. The Government indicates that: (i) in accordance with the “normal” rules of Belgian collective labour law, a collective agreement at the enterprise level may be concluded by a single representative workers’ organization; (ii) stricter rules exist for night work, in the sense that, for example, in order to introduce a labour regime that includes night work (work performed between midnight and 5 a.m.), a collective labour agreement must be concluded with all the trade unions represented in the enterprise trade union delegation; and (iii) in order to facilitate night work for the purposes of e-commerce, the Belgian legislator re-introduced the “normal” rule, which means that the conclusion of a collective agreement at the enterprise level with a single trade union is sufficient to introduce night work into e-commerce. The Committee notes that, in respect of night work, the rules of collective bargaining applicable to e-commerce have been amended by the Framework Act of December 2017, and that the trade unions criticize both the lack of dialogue in this regard and the use of collective bargaining for purposes of deregulation. The Committee wishes to recall that, under Article 7 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Belgium, measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation, and, whenever possible, agreement between public authorities and employers’ and workers’ organizations. In view of the above, the Committee invites the Government to hold consultations with the parties concerned to assess the effects of the exemption to the rules of collective bargaining introduced for e-commerce in relation to night work, and to determine possible measures to be taken in this regard.
Taking trade union organisations to court for non-compliance with collective bargaining commitments. The Committee takes note of the observations of the FEB and the IOE, which contain allegations that Belgian companies are regularly confronted with trade union actions carried out in violation of the provisions of the sectoral collective labour agreements, such as conventional conciliation procedures and formalities related to strike notice. They consider that, as trade unions do not have legal personality, any action in court against them remains impossible and that the legal framework should be adapted to solve this problem and thus improve mutual trust between the social partners.
The Committee notes that the Government indicates that : (i) various laws confer on trade union organisations a limited, functional and active legal personality, such as the Law of 5 December 1968 on Collective Agreements and Joint Committees which, inter alia, allows representative trade unions to conclude collective labour agreements ; (ii) according to article 4 of this law, representative organisations may take legal action in all disputes to which the application of this law would give rise and for the defence of the rights of their members deriving from the agreements concluded by them; and (iii) this article implies that trade union organisations may take legal action as plaintiffs, but may also be sued if they do not comply with the aforementioned law or a collective agreement.
The Committee notes a divergence between the views of the employers' organisations mentioned above and those of the government in cases of non-compliance with commitments entered into under a collective agreement. It notes that article 4 of the Law of 5 December 1968 extends the prerogative granted by law to representative trade union organisations, although they do not have legal personality, to conclude collective agreements with the capacity to take legal action to enforce their content, and observes that the question raised by the employers' organisations concerns the counterpart of this right to take legal action, namely the possibility of bringing trade union organisations before the courts. While stressing that mutual respect for the commitments undertaken in collective agreements is a central aspect of the right to collective bargaining, the Committee requests the Government to indicate any legal obstacles that may prevent legal action from being taken against trade unions for failure to comply with their commitments in collective agreements, and to make any useful comments on the impact of the current situation on the effective implementation of collective agreements.

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The Committee takes due note of the Government’s first report and the national measures, including more than 20 pieces of legislation implementing all Parts of the Convention.

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee has examined the application of the Convention on the basis of the supplementary information received from the Government this year, as well as the information at its disposal in 2019.
Article 5 of the Convention. Effective tripartite consultations. The Committee notes with interest the detailed information provided by the Government concerning the tripartite consultations held in the National Labour Council (CNT) during the period from 1 June 2016 to 31 May 2020, in which the CNT examined issues related to international labour standards. The Government indicates in its report that the practice relating to the application of Convention No. 144 in Belgium has undergone slight changes. These changes were introduced following reflection undertaken by the CNT, in close collaboration with the services of the administrative department responsible for employment, on the rationalization of regular reporting procedures on ratified and unratified Conventions. In this context, the working methods were adapted in order to provide support to the Government in terms of the content of replies and to achieve an optimal synergy between positions, while at the same time improving the transparency and effectiveness of the procedure of tripartite consultation in the broadest sense. Moreover, on 25 October 2019, in view of the need to rationalize the procedures, the CNT and the Federal Public Service for Employment, Labour and Social Dialogue, in collaboration with the Ministry of Employment, adopted a new collaboration protocol relating to the application of Convention No. 144. The new protocol updates the collaboration protocol concluded in 1983. The Committee notes that the new protocol contains a schedule setting out the various procedures and key moments with the aim of achieving an optimal national consultation process for the various ILO mechanisms. There is also a timeline of the reporting process on unratified Conventions and on ratified Conventions. The Government adds that, despite the efforts made by the services of the administration to make the process of tripartite consultation more fluid, the proper functioning of the exercise still runs up against obstacles, and particularly the difficulties related to the regular reporting process faced by the administrative services and, consequently, the social partners, who are consulted at the end of the process. The Committee notes the observations made by the Government concerning the need for the Office to commence in-depth reflection on possible improvements to the reporting process under articles 19 and 22 of the ILO Constitution and on the rationalization of the procedures on which consultation is based. In this regard, the Committee draws the Government’s attention to the guidance provided by the Governing Body of the ILO at its 335th Session in March 2019, in the context of the Standards Initiative, concerning the streamlining of reporting, with a view to reducing the reporting burden on member States (GB.335/INS/5, Part 3.1, paragraphs 51 and 52). The Committee requests the Government to continue providing detailed and updated information on the impact of the new collaboration protocol adopted to optimize the functioning of the National Labour Council (CNT). It also requests the Government to continue providing detailed information on the content and outcome of the tripartite consultations held within the framework of the CNT.
COVID-19 pandemic. The Committee notes that, in light of the COVID-19 pandemic, the tripartite consultations on international labour standards have been temporarily disrupted. The Government notes the CNT’s insistence that the traditional processes for the involvement and consultation of the social partners are duly re-established following this period of crisis related to the pandemic. In this context, the Committee recalls the guidance provided by international labour standards and encourages the Government to make use of tripartite consultations and social dialogue as a solid basis for the preparation and implementation of effective responses to the deep-rooted socio-economic repercussions of the pandemic. The Committee invites the Government to provide updated information in its next report on any measures adopted in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to any measures taken to reinforce the capacities of the tripartite constituents and to improve national tripartite procedures and mechanisms. It also requests the Government to provide information on the challenges faced and the good practices identified in relation to the application of the Convention during and after the period of the pandemic.

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In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on occupational safety and health (OSH), the reports on which are examined this year, the Committee considers it appropriate to examine Conventions Nos 167 (on safety and health in construction) and 170 (on chemicals) together.
The Committee takes note of the first reports of the Government concerning Conventions Nos 167 and 170, and the supplementary information provided concerning Convention No. 170, in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

A. Protection against specific risks

Chemicals Convention, 1990 (No. 170)

Article 10(3). The employer’s responsibilities. The Committee notes the obligations pertaining to employers, including those concerning risk analysis in the workplace, which are covered in Title 1 “Chemical Agents” of Book VI of the Code on Welfare at Work, promulgated in 2017. The Committee notes, however, that the Code on Welfare at Work does not appear to include the specific obligation of Article 10(3) of the Convention, which requires employers to ensure that only chemicals which are classified, or identified and assessed, and labelled or marked in accordance with the Convention are used. The Committee requests the Government to indicate the specific provisions setting forth the obligation of employers to ensure that, in accordance with Article 10(3), only chemicals which are classified in accordance with Article 6 or identified and assessed in accordance with Article 9, paragraph 3, and labelled or marked in accordance with Article 7 are used.
Article 14. Disposal. The Committee notes that section VI.1-5, 4 of the Code on Welfare at Work defines an “activity involving chemicals” as including the “disposal” of these chemicals and that, consequently, the provisions of the Code on Welfare at Work, Book VI, Title 1 on "Chemical Agents" apply to safety and health risks. The Committee also notes the Government's indication in its report that the protection of the environment, in the context of the disposal of chemical agents, falls under the competence of the Regions, and of the legislation in force for the Flemish authority. The Committee requests the Government to provide further information on the manner in which it is ensured, in the various regions, that hazardous chemicals which are no longer required and containers which have been emptied but which may contain residues of hazardous chemicals, are handled or disposed of in a manner which eliminates or minimizes the risk to the environment.
Article 18(1). Right to remove oneself from danger. La Committee notes that section I.2-26 of the Code on Welfare at Work provides that workers who remove themselves from their workplace or a hazardous area in the event of serious and immediate danger “and which cannot be avoided", must not suffer any damages and must be protected from any harmful and unjustified consequences. Section I.2-26 of the Code also stipulates that the workers must immediately inform their line manager and competent internal unit. The Committee notes that Article 18(1) of the Convention does not refer to a danger “which cannot be avoided”. The Committee therefore requests the Government to take the necessary measures to align its legislation with this Article. It requests the Government to indicate all other measures to ensure that workers have the right to remove themselves from resulting from the use of chemicals when they have reasonable grounds to believe there is an imminent and serious risk to their safety or health, in accordance with Article 18(1) of the Convention.
Application of the Convention in practice. The Committee notes the data provided by the Government concerning the inspections carried out in enterprises, between June 2018 and April 2019, by the Directorate for the prevention of major accidents, which identify certain shortcomings in the regulations relating to labelling, distribution of safety data sheets, signage, and protection against exposure to chemical agents. The Committee requests the Government to continue providing information on the measures taken to ensure the effective application of this Convention in practice, including the number of inspections in enterprises carrying out activities involving chemicals, any shortcomings identified and the outcome of follow-up action.

B. Protection in specific branches of activity

Safety and Health in Construction Convention, 1988 (No. 167)

Article 12 of the Convention. Right to remove oneself from an imminent and serious danger. Employer’s obligation when there is an imminent danger to the safety of workers. The Committee notes that section I.2-26 of the Code on Welfare at Work provides for the right of workers to remove themselves in the event of serious and immediate danger "and which cannot be avoided”. In addition, according to section I.2-24 of the Code on Welfare at Work, the employer must “take measures and give instructions to the workers to allow them, in the event of serious and immediate danger which cannot be avoided, to stop their activity or to move to safety by immediately evacuating the workplace. The Committee recalls that Article 12(1) and (2) of the Convention do not refer to a danger which "cannot be avoided". The Committee therefore requests the Government to take the necessary measures to align its legislation with this Article. It also requests it to indicate all other measures taken or envisaged to give effect to Article 12.
Article 23. Work over water. The Committee notes that section 468 of the General Regulation for occupational prevention and protection provides that where there is a risk of drowning, easily accessible life-saving equipment shall be made available to personnel. The Committee also notes that, pursuant to section 26(1) of the Royal Decree of 25 January 2001 concerning temporary or mobile work sites, specific prevention measures relating to work exposing workers to a risk of drowning must be described in the health and safety plan of the temporary or mobile work site where such work is being carried out. The Committee requests the Government to provide further information on the manner in which it is ensured that these measures include those set forth under Article 23(a) (preventing workers from falling into water) and (c) (safe and sufficient transport) of the Convention.
Article 27. Explosives. The Committee notes that under section 26(1) of the Royal Decree of 25 January 2001 concerning temporary or mobile work sites, the specific preventive measures relating to work involving the use of explosives must be described in the safety and health plan of the temporary or mobile work site where such work is being carried out. The Committee requests the Government to provide further information on the national conditions in which explosives must be stored, transported, handled or used; and the measures taken to ensure that explosives are stored, transported, handled or used only by a competent person, who must take such steps as are necessary to ensure that workers and other persons are not exposed to risk of injury.

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The Committee takes note of the observations of the General Labour Federation of Belgium (FGTB), of the Confederation of Christian Trade Unions (CSC), and of the Confederation of Liberal Trade Unions of Belgium (CGSLB), received on 30 August 2019, that relate to the issues examined in the present comment, as well as the Government’s reply to those observations, received on 29 October 2019.
Article 3(1) of the Convention. Adoption of a national policy. The Government indicates that the workers in the Horeca (hotels, restaurants, cafes) sector enjoy the same protection under employment law as all other workers. It also indicates that the sector can, when the law so allows, make specific provisions by means of sectoral collective agreements. The Committee notes, however, that the Government does not provide information on the adoption of a national policy aimed at improving the employment conditions of the workers concerned, as provided for by the Convention. In that connection, the Committee notes the report, cited by the workers’ organizations in their observations, of the Court of Auditors, transmitted to the House of Representatives of Belgium in 2019. According to that report, the Government launched the “Horeca plan” in 2015, with a view to improving the viability of the sector at the same time as combatting undeclared labour. The Horeca plan set out measures to reduce social contribution charges on employment: creating flexi-jobs, exempting overtime from these charges, and also expanding the existing system of occasional work. The Committee requests the Government to provide updated and detailed information on the measures taken, including as part of the Horeca plan, to develop and apply a national policy aimed at improving the employment conditions of workers in the Horeca sector. It also requests the Government to provide information on the impact of the measures taken in the Horeca sector, the major challenges and trends in the sector, as well as all specific measures taken to limit job losses and the deterioration of employment conditions in the sector.
Article 4(2) of the Convention. Reasonable normal hours of work and overtime provisions. The Government indicates that hours of work and overtime for all workers, including those in the Horeca sector, are regulated by the Labour Act of 16 March 1971 (sections 19 and 29). In that connection, the workers’ organizations observe that the adjustments made to the overtime regime in the Horeca sector, in particular the specific overtime hours, combined with voluntary overtime and the cash register system (a system certified by the Ministry of Finance, which has become compulsory for the vast majority of Horeca operators in Belgium), can have the effect of increasing the annual number of overtime hours to 503 hours, thus preventing the workers concerned from benefitting from the reasonable overtime provisions foreseen by the Convention. In its reply to the workers’ organizations, the Government indicates that the particular nature of the Horeca sector makes a degree of flexibility necessary, to cope with unexpected peaks of work. The Government indicates that the limits placed on recourse to overtime systems, in particular section 27(5) of the Labour Act of 16 March 1971, impose an absolute limit, known as the “European limit”, under which the various authorised exceptions are without prejudice to the provisions of EU Directive 2003/88, such that working hours, including overtime hours, cannot exceed 48 hours a week within a four-month period. In that connection, the Committee wishes to draw the Government’s attention to paragraph 145 of its General Survey on hours of work, in which it points out that, when deciding what should be considered as a “reasonable” limit on the number of additional hours in cases of exceptions, the public authority should make a thorough evaluation of the intensity of the respective work, its ability to produce physical or mental fatigue, and of the possible negative consequences from fatigue for the respective employee and the public at large. The Committee requests the Government to provide detailed information on the effective measures that have been adopted to ensure respect for the limits set on the organization of working time in the sector. It also requests the Government to supply information on the measures taken to guarantee that overtime hours done by workers in the sector are compensated by time off with pay, by a higher rate or rates of remuneration for the overtime worked or by a higher rate of remuneration, in accordance with national law and practice and after consultations between the employer and the workers concerned or their representative, as provided under paragraph 7(3) of the Working Conditions (Hotels and Restaurants) Recommendation, 1991 (No. 179).
Point V of the report form. Application in practice. The Committee notes the Government’s indications regarding monitoring of social legislation, that in 2018 the Federal Employment, Labour and Social Dialogue Service carried out 4,611 regulatory actions for a total amount of €9,279,786 and concerning 21,846 workers in the Horeca sector. It indicates further that 2,295 infringement reports (pro justitia) had been drawn up and submitted to the labour tribunal. These infringement reports concern 7,545 workers and amount to a total of €1,619,885. The Committee notes in that regard, according to the information provided by the Government, that the nature of the infringements in the sector principally concerned: protection of remuneration; public holidays; part-time work; labour regulations, social security (supplying information); respect for collective agreements; maintaining social documentation and undeclared workers. The Committee requests the Government to continue to provide updated and detailed information, especially statistics, on the application of the Convention in practice, disaggregated by sex, age and category of work in the sector, concerning the number of visits undertaken by the labour inspectors, the results of the visits and the measures taken, if any.
COVID-19 pandemic. In the context of the global COVID-19 epidemic, the Committee recalls the guidance provided by international labour standards. In that regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for the formulation and implementation of effective responses to the profound socioeconomic repercussions of the pandemic. The Committee invites the Government to provide up-to-date information in its next report on the impact of the COVID-19 pandemic on the Horeca sector and on support measures and re-launching action taken to preserve the sector.
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