Definitive Report - REPORT_NO143, 1974

1. 7. The Committee first considered this case at its 60th Session in February 1972 and reported thereon to the Governing Body in paragraphs 17 to 26 of its 130th Report, adopted by the Governing Body at its 186th Session (June 1972).
2. 8. The Committee recalls that the allegations relate to Bill No. 889, on the creation of bargaining and consultation Committees in public services. The Government having stated that because the Belgian Parliament had been dissolved, the Bill had lapsed, the Committee recommended the Governing Body to decide that the case did not call for further examination on its part.
3. 9. On 18 May 1972 and again on 29 November 1973, the Association of Independent Trade Unions of Belgium again wrote to the ILO. The Government made its comments in two letters dated 26 July 1972 and 14 November 1973.
4. 10. Belgium has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 11. In its communication dated 18 May 1972, the Association of Independent Trade Unions of Belgium declares that Bill No. 889 has been revived, fresh legislation having been enacted concerning the effect of the dissolution of Parliament on bills already tabled. Hence it wishes the Committee to reconsider the complaint.
2. 12. The Government, in its letter dated 26 July 1972, confirms that the Bill has been revived.
3. 13. The Committee recalls that the complainants alleged that the Government, in submitting Bill No. 889 to the Chamber of Representatives, intended to grant a monopoly to the political trade unions in the public service.
4. 14. The complainants claim that this Bill, designed to regulate labour relations in the public service, is unacceptable in two ways. Firstly, in order to be considered representative on the general public service Committees' (negotiating bodies set up under the Bill), a workers' organisation must be affiliated to a trade union body represented on the National Labour Council. The preamble to the Bill recognises, they state, that the Council deals exclusively with workers in the private sector and has no powers in the public sector. The result, according to the Association, is that the Government, having ruled that the organisations represented on the Council are not competent, makes the right of representation dependent on membership of this same body, whereas such membership would seem rather to be a reason for exclusion.
5. 15. Moreover, the complainants point out that the only trade union organisations represented on the Council are the three whose links with the three "traditional" parties (Socialist, Christian Social and Liberal) are common knowledge. The position is especially serious in the public sector, they add, for the Bill discriminates between the trade unions linked to the parties that generally constitute the Government and local authorities (i.e. the employers of public servants) and other trade union organisations, in particular the Association of Independent Trade Unions, which, at every trade union election in the public sector, has obtained enough votes to be represented at the national level. Hence the complainants consider that the Belgian State, as the employer, is guilty of interference in trade union matters. As they see it, the Bill excludes the Association from bargaining carried on in the General Committee, whereas formerly it was represented there, since it had been regularly elected by the staff.
6. 16. The second principal grievance has to do with the fact that the Bill (sections 7 and 8) provides for the representative character of the trade unions to be assessed on the basis of their paid-up membership. For two reasons the complainants find this unacceptable. Firstly, since trade union activities have a political aspect, a number of public servants are induced to join several trade union organisations; and secondly, members are entitled to join unions anonymously so as to avoid victimisation by the employer. The complainants add that some of their members have been forced to join political unions to obtain the promotion to which they were entitled. In fifty years or so of existence, they have known of only one instance when their employer tried to obtain a list of members. That was during the Occupation and all the self-respecting trade union organisations refused to comply.
7. 17. As the complainants see it, the only persons qualified to decide whether a trade union is representative or not are the workers in the undertaking or sector concerned, even if not themselves members of a union. Hence it is only by trade union elections that the representative character of workers' organisations can be established.
8. 18. In their letter dated 29 November 1973, the complainants refer to the amendments made to the Bill by the present Government. They regard these amendments as further proof of the connivance between the political unions and the employer. They consider that the changes made in section 7 of the Bill are intended merely to make room for the Liberal trade union since the Liberal Party is represented in the Government. Furthermore, the Government maintains the third criterion of representative character - namely, membership of the National Labour Council - whereas membership depends exclusively on a decision by the employer, namely, the Government of Belgium.
9. 19. In a letter dated 14 November 1973, the Government provides a copy of the Bill, with the amendments it has put forward, and analyses the provisions in question.
10. 20. The preamble to Bill No. 889 states that this piece of legislation is intended to lay the foundations of a new system of employment relations for public servants. While, the preamble states, freedom of association must be fully safeguarded, it is necessary to regulate the relations between the political or administrative authorities on the one hand and the responsible spokesman of the public employees on the other. To this end, the Bill provides for three measures: approval of trade union organisations, recourse to bargaining and consultation and a new approach to the problem of representative character.
11. 21. The trade union regulations issued by Royal Order on 20 June 1955 already provide for the official approval of trade union organisations and require trade union organisations wishing to exercise certain rights to file their rules and a list of officers. No new administrative procedures are required to secure approval.
12. 22. On the other hand, bargaining and consultation call for fresh arrangements. Bargaining demands a thorough discussion of the issues at stake, so that allowance can be made for different views. If it is not to be overloaded, it must be limited to essentials; hence the need for another procedure whereby employees can be given a say in the preparation of the organisational measures demanded for administrative purposes. This is the purpose of the consultation machinery.
13. 23. Lastly, the preamble points out that the sections dealing with the representative character of a trade union are based on the Act of 5 December 1968 respecting collective agreements and joint Committees. The following are considered representative under the Act: (1) national workers' interoccupational organisations represented on the Central Economic Council and National Labour Council; such organisations must have at least 50,000 members; (2) occupational organisations affiliated with or belonging to an interoccupational organisation of the kind just mentioned. The preamble declares that the Government kept in mind the way in which the Act of 5 December 1968 had settled the question of representative character when it came to laying down the criteria in Bill No. 889, even though the Act had been designed first and foremost for the private sector.
14. 24. To conclude the preamble, the Government states that the Bill, in all its provisions, helps to promote trade union activities within the public administration.
15. 25. Bill No. 889 essentially contains rules for bargaining and consultation procedures and for the Committees set up to give effect to such procedures.
16. 26. Sections 3 and 4 of the Bill concern the creation of various negotiating bodies. There are three general Committees, namely, the National Public Services Committee, the Provincial and Local Public Services Committee and the Joint Committee for the public service as a whole, to deal with matters that concern national, regional and local public service employees as a whole. In addition, sectoral or special Committees are set up for government departments and other state services and public organisations, and Committees for provincial and local administrations, establishments and services. Each of these special Committees deals with matters of concern to the staff of the service or services for which it has been created.
17. 27. Section 6 of the Bill lays down that only representative trade union organisations may be represented on the bargaining Committees. According to section 7, for representation in the Joint Committee, a trade union organisation is deemed representative if it: (1) is nation-wide; (2) defends the interests of all classes of public service employees; and (3) is affiliated to a trade union organisation represented on the National Labour Council. Besides having to meet these three conditions, an organisation must have a paid-up membership of at least 10 per cent of the staff in the relevant public services if it is to be represented in the National Public Services Committee and the Provincial and Local Public Services Committee.
18. 28. Under section 8, the following are considered representative and hence entitled to seats on the special national Committees: (1) any organisation with a seat on the general National Public Service Committee; (2) the approved trade union organisation which at one and the same time defends the interests of all classes of employee in the services for which the Committee caters, is affiliated to a national trade union federation and has the most paid-up members of all the trade union organisations other than those mentioned under (1) whose paid-up members employed in the relevant public services represent at least 10 per cent of the total so employed. The rules respecting representation in the special regional and local Committees are very similar.
19. 29. Section 15 deals with the rights of approved trade union organisations, and thus also covers organisations not entitled to sit on the negotiating bodies. Under this section approved trade union organisations can: (1) approach the authorities in the collective interest of the staff they represent or in the interest of an individual public servant; (2) assist, at his request, a public servant called upon to account for his conduct before an administrative authority; (3) affix notices in working premises; (4) receive general personnel management literature about the staff it represents.
20. 30. In its comments on the Bill, the Government says that the general bargaining Committee for all public services replaces the National Labour Council in matters concerning public service employees.
21. 31. As regards the representative character of trade unions, the Government says that this is determined by objective criteria laid down in advance, thus meeting the principle more than once expressed by the Committee on Freedom of Association.
22. 32. The Government explains that the Bill embodies criteria of two kinds for the assessment of representative character: the "external" and the "internal". The former take into account the way in which a trade union movement has freely organised itself. They reflect a desire to have high-level relations only with those organisations which belong to the main stream of the trade union movement. This state of affairs already exists in the National Labour Council and Bill No. 889 merely extends it to the public sector.
23. 33. As regards the "internal" conditions, the Government states that they have been relaxed in the case of the special Committees. So as not to incur the reproach of having set up a discriminatory system, it has accepted the condition of 10 per cent of the staff in the service concerned, whereas the Bill in its original form required 15 per cent.
24. 34. The Government adds that it has submitted an amendment to the Bill on "supervisory arrangements". A three-man board appointed by the Crown and presided over by a judge will verify every six years whether the trade union organisations represented or wishing to be represented on the negotiating Committees meet the conditions prescribed by law. The members of the board and their staff will be bound to secrecy. Moreover, a trade union organisation previously found not to meet the requirements will be able to put its case again before the six years are up, should it feel that it then qualifies. If, on reconsideration, it is deemed representative, it can at once take its seat on the Committees concerned.
25. 35. The Government states that it is the prerogative of the public authorities to decide whether organisations are representative or not, and that the criteria employed have been objectively arrived at. The Council of State, it adds, has acknowledged that it is reasonable to require a trade union organisation wishing to be represented on a general Committee to belong to the National Labour Council. The requirement that an organisation should be interoccupational is designed to ensure that it does not merely defend its own interests with no concern for those of other public employees. The Council of State takes the view that since public employees are not being asked to join unions other than those of their choosing, more especially political unions, there is no breach of freedom of association. Public employees, says the Government, are in no way obliged to join a union, even less any particular union. The criteria adopted represent the outcome of a slow process of development in Belgian labour lam. Furthermore, the Government feels that the arrangements made for inquiries to ascertain representativeness ensure the requisite degree of secrecy and fairness. In connection with the claim that such action favours the political unions, the Government points out that trade union organisations are not prohibited from having their own political views, or even from forming connections with political parties.
26. 36. It adds that, while the Bill restricts membership of the negotiating Committees, it does at the same time deal with the procedure for the approval of trade union organisations and with the rights bestowed on them once this formality has been complied with. By virtue of the arrangements made for approval, non-representative trade union organisations, although not represented on negotiating and consultation Committees, can nevertheless continue to further and defend their members' interests. Finally, the Government says that only when a trade union organisation is no longer able to further and defend its members' interests is it entitled to complain of a breach of freedom of association. By virtue of the arrangements for approval, the Bill does not jeopardise this right.

B. B. The Committee's conclusions

1. 37. The Committee notes that the complainants' allegations relate to a Bill dealing with negotiation and consultation in the public service. Essentially, this Bill provides for the setting up of Committees of two kinds. The general Committees deal with problems common to the entire public service while the special Committees handle the problems of particular sectors. The complainants challenge the following two conditions demanded of an organisation before it can be represented on such bodies: to be represented on the general Committees, it must be affiliated to a trade union organisation represented on the National Labour Council (the "external" criterion); and it must submit to a count of its paid-up members, as a criterion of its representative character. The complainants object to the first of these two conditions for two main reasons. Firstly, the National Labour Council is competent to deal with the private sector alone and only the "political" trade unions linked with the Government are represented on it. The complainants feel that the counting of members is undesirable, for public employees are often members of several organisations; moreover, they are frequently obliged to join a political union in order to obtain promotion. Hence, the complainants would like trade union elections to be introduced as a means of determining representative character.
2. 38. The Committee takes note of the Government's comments on these allegations and, in particular, of the fact that the Government justifies the imposition of external conditions by its desire to have dealings with the main body of the trade union movement and to extend to the public sector the system already in force in ordinary labour law through the National Labour Council, which deals with the private sector. The Government considers that it alone is competent to judge whether a trade union organisation is representative. The Committee also notes that in the Government's view the criteria of representative character have been objectively arrived at and that the inquiries envisaged with a view to assessing the unions' "internal" representative character guarantee secrecy and fairness. Lastly, the Government states that the procedure for approval will allow organisations not represented on the negotiating Committees to continue to promote and defend their members' interests and that for all these reasons the Bill in question does not constitute a breach of the principles of freedom of association.
3. 39. Before giving an opinion on the problems involved in this case it might be helpful briefly to review other cases in which the Committee has had to consider the question of the representative character of trade unions.
4. 40. In such instances, the Committee has conceded that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness but has taken the view that the intervention of the public authorities with regard to advantages should not be of such a nature as to influence unduly the choice of the workers in respect of the organisation to which they wish to belong. The Committee has also taken the view that the fact that a trade union organisation is debarred from membership of joint Committees does not necessarily imply infringement of the trade union rights of that organisation. But for there to be no infringement, two conditions must be met: first, the reason for which a union is debarred from participation in a joint Committee must lie in its non-representative character, determined by objective criteria; second, in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87.2
5. 41. In this case, and as regards the allegations about the external conditions for representative character, the Committee observes that Bill No. 889, although setting up general Committees to deal with the public sector only, specifies, as a condition for representation on them, that an organisation must be affiliated to an organisation represented in the National Labour Council, a body which (should the Bill become law) would, it seems, be competent to deal with the private sector only.
6. 42. Such a system, the Committee considers, might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector, might be excluded from the general negotiating Committees on the grounds that they were not affiliated to a trade union organisation represented on the National Labour Council, a body which would not, however, be competent with respect to the public sector.
7. 43. As regards the allegations about the counting of paid-up members, the Committee observes that although in general a vote might be a desirable means of ascertaining how representative trade union organisations were, the inquiries provided for in the Bill seem to offer genuine guarantees of secrecy and impartiality. It also observes that these provisions ensure that decisions by the board will be subject to review at sufficiently frequent intervals, since a trade union organisation will be able to appeal to it whenever it considers that it meets the conditions governing representative character. Furthermore, as regards the right of public employees to join organisations of their choice and to be protected against victimisation, the complainants themselves acknowledge that Belgian employers refrain from demanding lists of trade union members.