Definitive Report - REPORT_NO197, November 1979

1. 139. The National Confederation of Executive Staffs (Confédération nationale des cadres - CNC) presented its complaint in a letter dated 15 January 1979. The Belgian Confederation of Civil Engineers and Agronomists, in a letter of 12 October 1979, declared its support for this complaint. The Government forwarded its observations in a communication dated 18 April 1979.
2. 140. Belgium has ratified both 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. The complainant's allegations

1. 141. The complainant claims that the CNC is the trade union organisation most representative of executive staff in Belgium far more workers in this category belong to it than to any of the three officially recognised trade union organisations, and it is the only Belgian trade union defending the specific aims and interests of this staff. The CNC, it adds, is an inter-occupational organisation, federated at the national level; it is independent and operates entirely under its members' control.
2. 142. The complainant alleges that although it is in fact that trade union organisation which is the most representative of Belgian executive staff, the CNC is still not recognised by the authorities it is not authorised either to participate in the work of national consultative bodies such as the National Labour Council and the Central Economic Council or to be represented on the joint Committees set up for the different branches of activity. According to the complainant it is the deliberate intention of the Government to maintain the monopoly of the three traditional trade unions. The complainant reviews briefly the background to this situation and explains that under Belgian law (both the legislation on works councils and the Act of 5 December 1968 on collective agreements and joint Committees), a trade union is legally recognised only if it is represented on the National Labour Council and the Central Economic Council. This requirement enables the three traditional trade unions to preserve their monopoly by denying all other trade union organisations access to these two bodies.
3. 143. The complainant goes on to state that in 1978 the CNC submitted an official application to the ministries concerned to be allowed to sit on the two bodies in question, but its request was refused. While recognising that the law made no explicit stipulations as to the representative character an organisation must have in order to participate in the work of the National Labour Council, the authorities invoked the criteria laid down by law in respect of joint Committees (inter alia, the need to have at least 50,000 members as grounds for their refusal). The CNC points out that the Committee of Experts on the Application of Conventions and Recommendations has made comments on the application by Belgium of Convention No. 87 which relate to this question. The complainant adds that the Belgian authorities are guilty of acts of interference of such nature as to restrict freedom of association and trade union rights and impede the lawful exercise thereof. It also refers to certain principles expounded on previous occasions by the Committee.
4. 144. Lastly, the CNC points out that there are fewer than 200,000 workers in this category in Belgium and that in consequence the minimum membership of 50,000 required to be eligible to sit on joint Committees is excessive when the whole of the working population (about 3 million people) can be represented on the consultative bodies by a trade union with only 50,000 members.
5. B. The Government's reply
6. 145. In its letter of 18 April 1979 the Government confirms that the CNC applied officially for admission to the National Labour Council but that its application was refused (for the reasons stated below). The Government points out that the complaint does not invoke any particular Article of the freedom of association Conventions.
7. 146. It goes on to describe the system for determining the representative character of trade union organisations in operation in the country. It states that Belgian law, like the law of other countries, makes a distinction among trade union organisations: the right to conclude collective agreements binding upon all the workers in a particular occupational sector is reserved for representative trade union organisations, on the basis of the viewpoint that participation would be impossible if there were too many organisations. Those which are called upon to participate in the actual organisation of industrial relations and have institutional powers vested in them must be able to speak on behalf of all the workers in the occupation in question; it is in this sense that they must be representative, personifying the interests of all the workers. The Government adds that the law has laid down objective and pre-established criteria as to representative character and cites in particular the Act of 29 May 1952 instituting the National Labour Council and the Act of 5 December 1968 on collective agreements and joint Committees.
8. 147. The Government goes on to quote the following provisions from these two Acts:
9. - section 2 of the Act of 29 May 1952:
10. §2. The members [of the National Labour Council] shall be appointed by the Crown. They shall comprise representatives in equal numbers of the most representative organisations of employers and the most representative organisations of workers.
11. ...
12. The members representing the most representative organisations of workers shall be selected from among the candidates nominated on a double list by the inter-occupational organisations federated at the national level.
13. - section 3 of the Act of 5 December 1968:
14. For the purpose of the application of this Act (respecting collective agreements and joint Committees), the following shall be deemed to be workers' representative organisations and employers' representative organisations:
15. (1) inter-occupational organisations of workers and employers established at the national level and represented on the Central Economic Council and the National Labour Council; the workers' organisations shall furthermore have at least 50,000 members;
16. (2) the occupational organisations affiliated to, or forming part of, an inter-occupational organisation referred to in paragraph (1 );
17. (3) ...
18. 148. The Government emphasises that it is the Crown which appoints the members of the National Labour Council (and the Central Economic Council) from among the candidates proposed by the trade union organisations. It is accordingly for the public authorities to decide whether a trade union organisation which fulfils the statutory requirements should or should not be deemed to be one of the most representative organisations eligible to sit on the National Labour Council. In the same way, trade union organisations are requested (by notice published in the Moniteur Belge (Official Gazette)) to state whether they wish to be represented on joint Committees (and, if so, to furnish evidence of their own representative nature). The competent minister designates the organisations which are to be represented and fixes the number of seats to be granted to each; this decision is notified to all the organisations which have asked to be represented (see section 42 of the aforementioned Act of 5 December 1968). The Government adds that the power of appreciation vested in the public authorities is subject to judicial control; an appeal may be lodged for abuse of power. Such control may relate to the observance of the prescribed objective requirements or to the exactitude of the reasons given for the decision.
19. 149. The Government goes on to reply more specifically to the various allegations made by the complainants. According to the Government, the CNC's claim to be the organisation most representative of executive staff is by no means established, and it is challenged by other trade union organisations with workers in this category among their members. The latter are not debarred from the various consultative bodies; a large number of them are represented in the most representative workers' organisations which take part in labour-management consultation at all levels, and executive staff is represented at a substantial number of joint meetings.
20. 150. The Government states that the CNC is not a representative trade union organisation within the meaning of the law since it does not have 50,000 members. It recalls the reasons which have led to a distinction being made among trade union organisations and the objective criteria on which this selection is based. A distinction between representative unions and minority unions has been made in Belgium, in pursuance of various legislative provisions, for more than 20 years, and the criteria chosen make it possible to ensure that the trade union organisation concerned offers evidence of stability, authority and the ability to ensure respect for collective agreements. The Government points out that whatever the criteria used, a system based on representative character is bound to create certain monopoly, but that the prerogatives reserved for the representative organisations do not prevent other trade unions from being founded or from operating. The organisations deemed to be the most representative according to the statutory criteria are also, insists the Government, the most representative in practice; the law and the facts of the social situation concur in an appropriate manner. Moreover, the statutory machinery is not an exclusive preserve, and the criteria adopted allow other organisations than those deemed at present to be representative to apply for this status. There is nothing to prevent the ratio of strength from changing in the future.
21. 151. The Government goes on to refer to the direct request made in 1977 by the Committee of Experts on the Application of Conventions and Recommendations with regard to the application by Belgium of Convention No. 87, and the report submitted in reply to these comments. It adds that the CNC has members in every branch of activity in the country; this executive staff constitutes just one of the categories of workers falling within the jurisdiction of the various joint Committees for salaried employees (or, where there is none, the National Labour Council). Consequently, an organisation representing executive staff could never as such be deemed to be the organisation most representative of the workers in a given branch of activity.
22. 152. The Government also explains the legal grounds for its decision to refuse the CNC's request for a seat on the National Labour Council. It acknowledges that the Act whereby this body was established does not explicitly make any stipulation with regard to numerical strength. However, although in principle the Council is called upon to conclude collective agreements covering different branches of activity throughout the entire country, it may conclude a collective agreement for a branch of activity which is not within the competence of an established joint Committee or where an established joint Committee does not function (section 7 of the aforementioned Act of 5 December 1968). In view of these deputising functions, according to the Government, the qualifications for entitlement to sit on a joint Committee - including that of a membership of at least 50,000 - should also apply to entitlement to sit on the National Labour Council. The Government mentions two further provisions of the Act of 5 December 1968. Under the terms of section 10, a collective agreement concluded in a joint Committee is null and void if it is contrary to an agreement concluded in the National Labour Council. At the same time section 51 establishes an order of precedence among collective agreements in which those concluded in the National Labour Council occupy the first place. The Government infers from these provisions that the latter body takes precedence over the joint Committees and that the minimum of 50,000 members required to be eligible for a seat on such a Committee is therefore all the more valid for the purposes of assessing the representative character of workers' organisations wishing to participate in the work of the National Labour Council. It would moreover be paradoxical if a trade union were allowed to sit on this Council and not on the joint Committees.
23. 153. Lastly, the Government states that freedom of association and trade union plurality are fully respected in Belgium. It insists that it is necessary, precisely because of this freedom, to lay down criteria as to representative character before entrusting trade union organisations with certain responsibilities, and to adapt these criteria to the importance of the powers thus conferred. In particular, a trade union organisation should represent a number of workers large enough to ensure that it can maintain a firm position in labour-management relations. A minimum membership requirement for entitlement to sit on the National Labour Council or on the joint Committees is, in the Government's opinion, an objective, democratic and indispensable criterion. There are about 3 million workers in Belgium, and the figure of 50,000 members is therefore not excessive.
24. 154. The Government adds that this requirement does not prevent the founding of trade union organisations. Freedom of association as defined in Convention No. 87 is guaranteed in Belgium at all levels; freedom to establish trade unions is subject to no restriction, and every worker has the right to join or not to join a trade union. A non-representative union enjoys full rights and may carry on freely all its activities for the furtherance and defence of its members' interests. In particular, it can conclude collective agreements outside the machinery established by law. In conclusion, the Government expresses the opinion that the rules governing representative character as laid down by Belgian law do not infringe the principles embodied in Conventions Nos. 87 and 98.

C. The Committee's conclusions

1. 155. The CNC'S main complaint is that it is unable, even though it considers itself to be the trade union organisation most representative of Belgian executive staff, to participate in the work of various consultative bodies, and in particular the National Labour Council and the joint Committees (where most collective bargaining takes place at the branch-of-activity level). The Government refuses to recognise this organisation as being representative, basing its refusal on the criteria laid down by the rational legislation, particularly as concerns the size of its membership.
2. 156. It appears from the information available, including the legislative provisions quoted by the Government, that to sit on the National Labour Council a workers' organisation must be:
   • (a) an inter-occupational organisation federated at the national level;
   • (b) deemed to be representative by the public authorities, subject to judicial control. These authorities have ruled that the organisation concerned must have at least 50,000 members (a requirement explicitly laid down in respect of eligibility for a seat on a joint Committee); this decision does not seem to have been challenged in the courts.
     • The following have been appointed to sit on the Council: the General Confederation of Liberal Trade Unions of Belgium, the Confederation of Christian Trade Unions and the General Federation of Labour of Belgium; the complainant is affiliated to none of these Confederations. The situation is the same as concerns participation by trade union organisations in the Central Economic Council. As for the qualifications required for a trade union organisation to be able to sit on a joint Committee, they are as follows:
   • (a) it must be (or be affiliated to) an inter-occupational organisation operating at the national level;
   • (b) the latter organisation must have at least 50,000 members;
   • (c) it must be represented on the National Labour Council and the National Economic Council;
   • (d) the trade union organisation concerned must be declared to be representative by the public authorities, subject to judicial control.
3. 157. The diversity of the trends in the trade union movement of many countries has indeed prompted their legislators to reserve certain rights for the organisations with the largest following among the workers, particularly as concerns negotiation with, or consultation by, employers or the public authorities. The concept of "most representative organisations" was already to be found in Part %III of the Treaty of Versailles, and is embodied today in article 3, paragraph 5, of the ILO Constitution in relation to the nomination of non-governmental representatives to the International Labour Conference. Reference was made to it, inter alia, during the preparatory work on Convention No. 98 and on the Collective Agreements Recommendation, 1951 (No. 91).1 The Committee has accordingly admitted on various occasions that a distinction may be made under one system or another between different unions according to the extent to which they are representative. But it has added that it is nevertheless necessary, in order to prevent abuse, to verify the value of the criteria chosen for determining representative character and to ascertain whether sufficient protection is afforded to minority organisations to enable them to pursue and develop their trade union activities.
4. 158. While a distinction between trade union organisations may therefore be admissible in principle, particularly in order to facilitate the harmonious development of industrial relations, it is indispensable that the priority or exclusivity granted to certain organisations for the purposes of representation should not be such as to restrict substantially the activities of minority unions and thereby influence the workers in their choice of an organisation. The Committee has expressed the view that the advantages accorded to certain unions should not extend beyond a priority in representation, especially for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In the present case there is no obstacle to the functioning of minority unions, which still have the right, for instance, to conclude collective agreements outside the machinery established by law, and which may also make representations on behalf of their members or represent them in disputes.
5. 159. The Committee has also sought to determine whether criteria used as a basis for assessing the representative character of trade union organisations were objective, pre-established and conclusive and allowed for no possibility of abuse. It has, inter alia, examined the legal requirements as concerns representative character in several cases involving Belgium. It has pointed out that the requirement that a union be affiliated to an organisation which is representative at both the national and the interoccupational level - or represented on the National Labour council - does not appear to be an adequate basis for deciding whether or not an organisation should sit on negotiating Committees set up at the level of a branch of activity, but that it is preferable to seek out the unions which, in the sector in question, are the most representative of the workers in that sector. The Committee has admittedly recognised the usefulness of associating the major trends in the Belgian trade union movement with the bargaining process. But it has added that the criteria laid down by law should not prevent a union which does not belong to one of these major trends but which appears to be the most representative of the workers in a particular sector from occupying the place which is just as much its due on the negotiating bodies. The Committee of Experts on the Application of Conventions and Recommendations has made comments along the same lines with regard to the Act of 5 December 1968 (on collective agreements and joint Committees) and another Act concerning the public sector.
6. 160. The Committee considers that the foregoing remarks are still valid. Nevertheless, the question raised in the abovementioned cases concerned the possibility of allowing a trade union in a majority position in one branch of activity (but not representative at the inter-occupational level) to participate in negotiating bodies in the branch of activity in question. In the present instance, the main issue is more concerned with the possibility of allowing a union which claims to be the most representative of a particular category of workers - executive staff - to sit on the different consultative bodies, including in particular the National Labour Council and the joint Committees.
7. 161. As the Committee has already pointed out on another occasion, the union most representative of a particular category of workers should be associated with the collective bargaining process so as to permit it adequately to represent and defend the collective interests of its members. In the present case, however, the Government states that it is by no means established that the CNC is really representative and that other trade union organisations with executive staff among their members have challenged its claim to this status. It adds that executive staff are not debarred from the various consultative bodies; a large number of them are represented in trade union organisations which have seats on consultative bodies at all levels and executive staff are also represented at a substantial number of joint meetings. The Committee observes that the CNC has furnished no details about its representative character (whether at the inter-occupational level or in the various branches of activity), on in particular, about the size of its membership it may be seen, however, from the figures supplied by the complainant that the CNC does not represent 25 per cent of executive staff since, out of approximately 200,000 workers in this category, it does not include 50,000 within its ranks, this figure representing the minimum number of members required to be entitled to sit on the National Labour Council.
8. 162. The Committee does not consider this minimum excessive as a qualification for entitlement to sit on the National Labour Council in so far as trade union organisations cover all categories of workers and not one single category. However, the Committee must also examine the conditions attached to participation by the CNC in the joint Committees (i.e. the consultative bodies established at the level of individual branches of activity). In the Committee's opinion, should it be shown - a fact not established up to now - that this organisation is the most representative of executive staff in a given sector, then it should be associated, in one way or another, with the work of the competent joint Committee when it deals with matters of particular concern to this category of workers. Finally, the Committee considers that the organisation which is the most representative of the executive staff must have the right to conclude, even at the inter-occupational level, collective agreements concerning the specific interests of such staff, and notes that, according to the Government, such a possibility exists within the legal system in force.