Definitive Report - REPORT_NO251, June 1987

1. 27. The Committee considered this case at its meeting in November 1985 when it presented an interim report that was approved by the Governing Body at its 231st Session. (See 241st Report paragraphs 564 to 648.)
2. 28. At its meeting in February 1986, the Committee decided to postpone consideration of this matter, as indicated in paragraph 8 of the 243rd Report as approved by the Governing Body at its 232nd Session (Geneva February 1986) in the hope that it would receive a copy of the decree by the Council of State on the nullification appeal lodged by the National Union of Independent Trade Unions (UNSI) against the Ministerial Decree under which this organisation was refused access to the National Labour Council, as well as copies of the appeals lodged by the Federation of Postal and Telecommunications Workers which is affiliated to the UNSI.
3. 29. In its communications of 21 August and 16 September 1986, the Government annexed copies of the three decrees issued by the Council of State concerning the appeals lodged by the Federation of Postal and Telecommunications Workers but it failed to include that concerning the appeal lodged by the UNSI.
4. 30. Subsequently, the Independent Union of Railway Workers (SIC) also affiliated to the UNSI, lodged a complaint against the Belgian Government for breach of freedom of association through communications of November 1986 and January 1987.
5. 31. In response to a request by the Committee that it be kept informed of the date of the pending decision by the Council of State, the Government in a communication dated 14 January 1987, stated that procedures were long and difficult and that it was not easy to predict exactly when the decision would be handed down. At its meeting in February 1987, the Committee recalled that its jurisdiction with respect to the consideration of allegations was in no way dependent on the exhaustion of internal channels of appeal and that it, therefore, postponed the consideration of cases for a reasonable period only where a court decision was pending. The Committee recalled that the UNSI complaint had been submitted to it for the firt time on 18 June 1983 and that the appeal lodged by that organisation with the Council of State dated from 5 December 1985. It pointed out to the Government that, given the amount of time that had elapsed since the submission of the complaint and the lodging of the appeal with the Council of State, it intended to consider the substance of the matter at its next meeting (paragraph 9 of the 248th Report).
6. 32. The Government subsequently sent a communication dated 8 May 1987.
7. 33. 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. Prior consideration of the case

1. 34. The UNSI complaint concerns essentially the refusal by the Government to grant that organisation - which claims to have national coverage, to be inter-occupational and to have a membership of some 100,000 - access to the National Labour Council and the resulting limitations placed upon it. Such limitations in the private sector are that it cannot participate in trade union elections, joint bargaining and the payment of unemployment benefits, that it cannot levy dues and that it would suffer discrimination resulting from the payment to workers in the private sector of trade union allowances which are said to be a real means of bringing pressure to bear to induce workers to join unions close to the Government. In the public sector, the limitations take the form of a ban on its participation in general negotiating committees, its checking examinations and its holding meetings and collecting trade union dues on departmental premises. Finally, there is the unilateral decision by the Ministry of Postal Affairs to exclude the Postal Workers' Trade Union - which represents workers in that sector - in favour of a liberal union which would appear not to be representative.
2. 35. The Committee, when considering this case in November 1985, realised on examining the Government's reply that this reply took no account, as grounds for refusing the UNSI access to the National Labour Council, of the perfectly acceptable quantitative criterion whereby a minimum membership of 50,000 is required of an organisation covering all categories of workers in order that it might sit on the National Labour Council (article 3 of the Law of 5 December 1968). As a result the Committee reached interim conclusions, couched as follows:
   • a) Regarding the Government's alleged refusal to allow the complainant organisation to sit on the National Labour Council, the Committee regrets the Government's delay in taking up the matter.
   • b) The Committee observes that the refusal to grant a seat to the UNSI on the National Labour Council makes it impossible for that union to sit on the general negotiating committee for the public service; the Committee requests the Government to indicate the objective factors which form the basis for the refusal to grant a seat to the UNSI on the National Labour Council so that it can reach a decision on this aspect of the case in full knowledge of the facts.
   • c) Regarding the alleged discrimination resulting from the payment to workers in the private sector of trade union allowances that are said to be a real means of inducing workers to become members of certain trade unions and which are allegedly to be extended by Royal Order, the Committee reminds the Government of the importance that it attaches to the fact that any advantage granted by the law to workers who belong to a particular trade union must not exceed a genuinely symbolic level, so as to ensure that in no case can an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intend to belong.
   • d) Concerning the alleged discrimination resulting both in the public and private sectors from the non-participation of union organisations in the National Labour Council (impossibility of participating in union elections and in joint consultations in the private sector and impossibility of taking part in general bargaining committees and of holding meetings and collecting union dues on departmental premises in the public sector), the Committee, as has already the Committee of Experts on the Application of Conventions and Recommendations, requests the Government to amend its legislation. This in effect provides that organisations that are not inter-occupational in nature or which are not affiliated to an inter-occupational organisation established at the national level do not sit on the National Labour Council. As a result, they are denied a considerable number of trade union rights, including in part the right to bargain collectively in the economic sectors in which they exercise their activities and in this particular instance in general negotiating committees in the public sector.
   • e) Concerning the complainant organisation's challenge to the degree of representativity of the three trade unions deemed by the public authorities to be the most representative and the problem that has risen in connection with the representativity of the occupational organisations of post and telecommunications staff, the Committee recalls that it is the responsibility of the Government to conduct an objective verification of the occupational organisations concerned and that the complainant occupational organisations must be able to assert their right by means of a majority vote of the workers or of any other system of counting their members accepted by them. In the present case, given that appeals have been brought before the courts, the Committee requests the Government to inform it of the outcome of the appeals lodged by the parties concerned.
   • f) The Committee notes with interest that the UNSI obtained its approval by a decision of 1 December 1984 and that its request for authorisation to sit on the specific or sectoral bargaining committees of the public sector is currently being examined by an independent commission composed of three judicial magistrates.
   • g) The Committee requests the Government to indicate whether in fact the UNSI has been permitted to sit on some of these committees and, if this is the case, on which committees, and also to indicate the scope and compass of collective bargaining in the specific and sectoral committees in question.

B. First reply from the Government

1. 36. In referring to the reasons for its refusal to allocate a seat on the National Labour Council to the UNSI, the Government admits, in its reply of 28 January 1986, that the Organic Law of 29 May 1982, whereby the National Labour Council was created, contains no condition or criterion relating to representativity. It states that the Law in question merely stipulates that the Government shall appoint the titular and substitute members of the Council, that it envisages no numerical criteria and that it thus has considerable discretionary powers in deciding which are the most representative organisations which should be invited to put up candidates to represent them on the National Labour Council.
2. 37. The Government does explain that collective agreements reached by the National Labour Council may be rendered mandatory by Royal Order and that this, with but rare exceptions, was always what happened. Hence, such agreements have force of law (with penalties in cases of breach). These collective agreements reached by the National Labour Council (of which there are 40 to date) deal with essential aspects of social life and apply to all undertakings in the private sector. Matters as fundamental as guaranteed minimum wages, part-time work, temporary work, the indexing system, early retirement, etc. are all dealt with, with, in Belgium, by this method. So the National Labour Council is a sort of "social parliament".
3. 38. It adds that the National Labour Council operates, by the rule of unanimity, that if the signature of one single organisation is missing from an agreement, that agreement cannot be rendered mandatory, and that this power of veto is utterly out of proportion with what the UNSI represents in the present state of affairs. According to the Government, in the general interest and for the sake of social peace, it is thus out of the question for the Executive to take such risks.
4. 39. Furthermore, states the Government, the Law of 5 December 1968 on collective labour agreements and joint commissions considerably increased the importance of the National Labour Council and the scope of its functions, as article 10 of that Law stipulates that any provisions of a collective agreement reached in a joint commission and which are contrary to the terms of an agreement reached by the National Labour Council shall be considered null and void.
5. 40. The Government goes on to explain that the reason why the legislature waived any provision providing for a certain number of members, in this case 100,000, as a condition for representation was not that it felt that the number of members was not a valid criterion for judging the representativity of an organisation but rather because it did not want to limit the discretionary powers vested on the Government. It adds that appreciation of the representative nature of an organisation is based on the actual social situation and on the knowledge that the Government has been able to acquire from the applicant organisation in accordance with criteria that have been applied for 40 years.
6. 41. The Government considers that in appointing to the National Labour Council delegates from the organisations that best represent workers and employers in the private sector and which have been organised inter-occupationally for a number of years, it has taken due account of criteria that are both quantitative (number of members) and qualitative (stability of the organisation, solidity of its existence and "projection" of its legislative bodies). It confirms, moreover, that the National Labour Council is empowered to deal with problems concerning workers and employers in the private sector only.
7. 42. Referring to the quantitative criteria, the Government holds that the UNSI has a total of under 100,000, members many of whom are employed in the public sector in which the National Labour Council has no jurisdiction. The Government explains that the public sector includes the following organisations: the Belgian National Police Federation, the General Federation of Teachers the Financial Union and the Independent Union of Railway Workers. Hence, from a numerical point of view, the representativity of the UNSI is ver questionable.
8. 43. Referring to the qualitative criteria (stability of the organisation solidity of existence and "projection" of legislative bodies), the Government points out that the UNSI did not come into being as an association until 9 November 1982. It considers that while a new organisation cannot be required to have existed for as long as one of the traditional trade union organisations, it must be admitted that a mere three years of existence is much too little to qualify an organisation as a stable association. A workers' organisation sitting on the National Labour Council also has to prove the solidity of its existence and activities or, in other words, that it has a sol basis. According to the Government, the answers to the questionnaire sent to the UNSI after it had filed its application, indicate that its basis is as yet fairly limited and that it cannot be compared to that of the three orgnisations which already sit on the National Labour Council. For the time being according to the Government this is still a nascent organisation, a core which has yet to consolidate, to take form over a number of years before it might possibly be considered a true constant in social relations. Finally a union which claims to be representative enough to occupy a seat on the National Labour Council must also prove that its legislative bodies and work are suitably "projected". It has to maintain frequent contact with the outside world. It is very important that it publish one or more journals as proof of this "projection" because representative trade unions must inform and influence their members to ensure that they respect the agreements and decisions that have been reached in the joint bodies. Moreover, it is important that they be really representative of all the workers and that they be able rapidly and correctly to keep them informed (by holding press conferences, advertising intensively etc.). But, claims the Government a readi of the statutes of the UNSI would seem to indicate that this "projection" has not yet materialised.
9. 44. It thus considers that the National Union of Independent Trade Unions (UNSI) does not meet the three objective and predetermined criteria (stability, solidity, "projection") which have been consistently applied since 1945 and that its refusal to recognise the UNSI as being representative is therefore impartial and not abusive.
10. 45. It furthermore states that freedom of association is totally guaranteed in Belgium at all levels and that no restrictions are imposed on the freedom to create workers' organisations, that all organisations are both duty-bound and empowered to conclude collective agreements and to negotiate to defend the interests of their members at all levels. It explains that the objective and predetermined criteria of representativity which distinguish between different unions apply only with the arrangement established by the Law of 5 December 1968 and that this particular arrangement in fact involves the most representative workers' and employers' associations in a system of negotiating and concluding collective agreements that has both been established and is enforced by law.
11. 46. The Government holds that Convention No. 87 requires of the State that it place no restriction on the creation and operation of trade union organisations but in no way requires that it organise collective negotiations in such a way as to ensure that all trade union organisations participate in all negotiations.
12. 47. The system as established in the Law of 5 December 1968, so it claims, is superimposed on the facility available to all trade union organisations to negotiate at all national and sectoral levels. Hence all trade union organisations can conclude collective agreements in a specific sector or for any given category of workers. However, such agreements have the force with which they are endowed under common law and not that derived from the Law of 5 December 1968. The Government admits that there exists a duplication of systems but it considers that Convention No. 87 continues to be respected in both the spirit and letter, since the distinction made between various trade union organisations does not in any way deprive those trade union organisations not recognised as being among the most representative of any of the essential means of defending the occupational interests of their members or of the right to organise their administration and activities and to draw up their plans of action as provided for in Convention No. 87.
13. 48. Moreover, the Government appended to its reply a copy of the appeal lodged by UNSI with the Council of State. From this, it is apparent that this organisation is a coalition of the following trade unions:
14. 1. Private sector
    • Algemeen Verbond van Vlaamse Syndicaten (General Federation of Flemish Trade Unions) 3 165 members
    • Algemeen Onafhankelijk Syndicaat (General Independent Union) 3 732 members
    • Société générale des représentants de commerce de Belgique 4 031 members
    • Confédération nationale des cadres 17 502 members
15. 2. Public Sector
    • Syndicat national de la police belge 7 995 members
    • Fédération générale du personnel enseignant 3 784 members
    • Union-Finances 5 014 members
    • Syndicat indépendant pour cheminots 1 624 members
16. 3. Cartel of Independent Belgian Trade Unions
17. 39,872 members: 23,485 in the private sector and 16,387 in the public sector.
18. 49. In its appeal the UNSI claims that if, according to the Minister, a distinction is to be made between the private and the public sectors, its membership comprises 51,915 members in the private sector and 34,804 in the public sector and that examination of its statutes and those of its affiliate organisations and consideration of its correspondence with the authorities indicate not only that the figure of 50,000 members has been attained but moreover that the inter-occupational character of its membership is apparent. It adds that if account also be taken of the trade union status of the public services (Law of 19 December 1974) it will also be seen that this sector should also be taken into account in determining the inter-occupational nature of its representation as, in order to be able to participate in negotiation and discussion committees, an organisation has to be a member of the National Labour Council. This reference to the National Labour Council with respect to the public services establishes the link between the public and private sectors. However, given the link between the public and private sectors, it is out of the question for the National Labour Council to consider only those figures relating to the private sector. The scope of activity with respect to the number of members was extended by the Laws of 1974 and 1984 on the trade union status of the public services. In its appeal, the UNSI points out that if this were not so it would be pointless making membership of the National Labour Council a condition of representativity in the public services, or as the Minister mistakenly claims is the case, there should be total separation between the private and public sectors.
19. 50. Returning to its own answer to the complaint, the Government points out that with respect to the question as to whether the UNSI has been authorised to sit on specific or sectoral committees, the complainant organisation is representative of only a small proportion of the public services subject to the 1974 Law, that it has not asked for access to any particular committees and that it cannot be considered sufficiently representative to sit on provincial or local public service committees. The Government does, on the other hand, admit that the UNSI has proved its representativity in two of the 15 sectoral committees created by these services viz. Finance and the Telegraph and Telephone Administration, and that it was allowed to file a request concerning sectoral committees for public community and regional services. The Government explains that the UNSI waived the filing of such a request in the other sectors on the grounds that "the trade union dues paid on 30 June 1983 by members in those sectors did not reach the minimum referred to in section 51(3) of the Royal Order of 28 June 1984". The Government adds that the UNSI subsequently went back on its waiver when it discovered that it would no longer, in future, be able to avail itself of the result of the examination of the conditions of representativity with respect to these 13 sectors and it asked that a count be made of its non-due-paying members as understood by law. The Government explains that the public authorities refused by pointng out that an examination of the representativity criteria would be pointless once the UNSI confirmed that in the 13 sectors in question it had no affiliate meeting those criteria. Moreover according to the Government there is no legal provision under which a count can be made of non-due-paying affiliates. It states that a request for a count, made with the intention of having a new check made, would be a breach of the 1974 Law which requires that a periodic check be effected at six-yearly intervals but does not permit the counting of the total membership of all of the trade union organisations in the public sector whether they request this or not. According to the Government, only the Representativity Supervisory Committee is empowerd to decide what is meant by "due-paying affiliate" pursuant to the 1974 Law.
20. 51. The Government further points out that the representativity of the complainant organisation which was established by two sectoral committees (on the basis of membership figures for June 1983), could - in the case of one of the sectors (Telegraph and Telephone Administration) - prove provisional as the Free Civil Service Union, in a letter dated 23 December 1985, requested that its representativity be reconsidered on the basis of membership figures for June 1984 pursuant to section 14(2) of the 1974 Law. The Government states that the law allows for an organisation to apply for reconsideration before the six years expire if it believes that, since its representativity was contested, more recent membership figures qualify it according to the set "due-paying-affilates" criterion.
21. 52. As far as the Government is concerned, the complainant organisation, which has not proved its representativity in the specific committees and which has proved it in only two out of the 15 sectoral committees, should not be admitted to committees common to all of the public services and even less so to the national, community and regional public sevice committees or the provincial an local public service committees.
22. 53. The Government considers wholly unfounded the oft repeated allegations made by the complainant organisation to the effect that the system established by the Law of 19 December 1974 was aimed at ensuring a monopoly for those trade union organisations that it calls "political" to the detriment of the so-called "apolitical" organisations as the complainant organisation itself was able to establish its representativity with respect to two of the sectoral committees and as it could, moreover, have done the same for all of the sectoral committees but that it had finally refrained from doing so.
23. 54. The Government concludes that the complainant organisation has not managed to show in what way the system established by the Law of 19 December 1974 deprives it of the right to participate in the general negotiating committees referred to in section 3 of that Law given that it had not established that it was a "sufficiently representative" trade union organisation and even less so that it was "the most representative" trade union organisation. As for the right to hold meetings and collect trade union dues on departmental premises and the right to attend examinations held for staff members the Government explains that it should be pointed out that the said trade union organisation can exercise these rights within the Telegraph and Telephone Administration sectoral committees as it has proved "sufficient" representativity to sit on such committees.
24. 55. It recalls, moreover, that the purpose of the condition for gaining access to general negotiating committees as stipulated in section 7(3) of the Law of 19 December 1974 according to which applicant trade union organisations have to be affiliated to a trade union organisation represented on the National Labour Council, is not - as the complainant organisation would have it - to ensure a representational monopoly for trade union organisations that it calls "political". This condition is actually based on the consideration that given the breadth of the scope of the measures submitted to the general negotiating committees and the financial burdens that such measures could incur, it would be inconvenient at this level to settle matters concerning public service workers without considering the policy to be followed with respect to workers in the private undertakings over which the National Labour Council has jurisdiction. The Government adds that there is, moreover, a trend in matters of social legislation to narrow the gap between the provisions applicable to public service workers and those applicable to workers in private undertakings.
25. 56. With respect to the request by this Committee that it be informed of the scope and extent of collective bargaining in the Finance and the Telegraph and Telephone Administration sectoral committees on which the complainant organisation has been permitted to sit, the Government provided the following explanations: - the scope of negotiation, in general, involves a thorough exchange of views which must by law precede any measures relating to the subjects mentioned in section 2(1) of the Law of 19 December 1974 - viz. basic regulations concerning administrative and financial status, pension systems, relations with trade union organisations and social services, regulations governing subsequent appointment of staff officers and the duration and organisation of work - and covered by the Royal Order of 29 August 1985 setting forth the basic regulations as defined in section 2(1.1) thereof. Negotiations are concluded either with a protocol agreement between the two parties or by a statement of their respective positions. If an agreement is reached the authority is politically bound to adopt or have adopted the measures on the matter on which the agreement was concluded; - with respect to the extent of negotiation, a distinction should be made between the Finance sector and the Telephone and Telegraph Administration sector.
26. 57. The Finance sector includes the Ministry of Finance (38,809 persons) the National Trust (Royal Donation) (11 persons) the National Lottery (433 persons) the National Occupational Loan Fund (279 persons) the National Agricultural Loan Institute (439 perons) the Central Mortgage Office (144 persons) and the National Office for the Verification of Corporate Solvency (203 persons). Negotiation in this sector covers the above-mentioned subjects but is limited by various elements viz. determination of basic regulations governing administrative and financial status and the pension system does not apply to contractual staff; it does however apply to staff members of the Ministry of Finance who are civil servants. However the rules applying to civil servants are the responsibility of the national community and regional public service commissions. The Government does however explain that, to the extent that the rules specifically applicable to the Ministry of Finance are drawn up in connection with the above-mentioned matters, they are subject to negotiation at sectoral committee level as are the rules relating to the organisation of social services in that sector. It should be added moreover that the complainant organisation does have access to consultation commissions created at sectoral-committee level or at that of the various public services covered thereby; these commissions have jurisdiction with respect to the measures specific to those sectors and services which are not defined as being regulated by the Royal Order of 29 August 1985. Furthermore the complainant organisation is by virtue of its seat on the consultation commissions involved in the application and preparation of measures concerning safety, hygiene and the decoration of the workplace for the services concerned. Finally, the members of the staff of the National Occupational Loan Fund, the National Agricultural Loan Institute, the Central Mortgage Office and the National Office for the Verification of Corporate Solvency, are not civil servants. The responsibility for determining the conditions and status of the staff of those bodies is incumbent on their respective administrations. Such measures are submitted to the sectoral committee or the consultation commissions answerable to it.
27. 58. Many of the arguments developed with regard to the Finance sector apply equally to the Telegraph and Telephone Administration with a staff of 29,798 on 30 June 1983. This is especially so where the conditions relating to contractual staff are concerned. The members of this administration are not, however, civil servants whose status is regulated by the Committee for National Community and Regional Public Services. The status of staff members of the Telegraph and Telephone Administration is determined by the sectoral committee. All of the measures covered by section 2 (negotiation) and section 11 (consultation) of the Law of 19 December 1974 such as those concerning administrative and financial status will therefore be dealt with by the sectoral committee or the consultation commisions that it may create, with the exception of those concerning both administration employees and state employees (civil servants) in other public services subject to the Law of 19 December 1974. This being so, these measures would be the responsibility of one of the general negotiating committees referred to in section 3 of the Law.
28. 59. In the view of the Government these considerations show that the complainant organisation is able to exercise its collective bargaining rights and the prerogatives of representative trade union organisations with respect to meetings and the collection of union dues on departmental premises, as well as the checking of examinations in those sectors in which it has been shown to be a sufficiently representative organisation. With respect to this last-mentioned point, the Government nevertheless recalls that the Free Civil Service Union holds that the complainant organisation is not representative enough to be granted access to the Telegraph and Telephone sectoral committee. It considers that the results of a further examination should be awaited before drawing any final conclusions with respect to the current representativity of the complainant organisation in the sector concerned.
29. 60. According to the Government, it cannot be held that the complainant organisation - which is not associated with one of the main trends of the Belgian trade union movement - has been denied the place that it claims on the general negotiating committees as the examination of its representativity has shown that it was not the union that appeared the most representative of public service workers (nor even as a union sufficiently representative of such workers as a whole) and that it did not - by far - enjoy the support of a majority of the workers directly concerned.
30. 61. The Government states with respect to trade union allowances that for many years very many sectors have been granting an allowance to their organised members. This allowance goes by various names such as supplementary social grant, social peace bonus, fidelity bonus etc. This advantage is normally bestowed on workers through collective agreements reached in joint committees which are frequently made mandatory by Royal Order. Such allowances may also quite frequently be allocated under in-house agreements. Dozens of sectors thus pay trade union allowances to their manual workers under collective agreements. A dozen or more joint committees for non-manual workers also provide for such advantages.
31. 62. The Government explains that the legality of collective labour agreements reached at company or sectoral level and which provide for the granting of allowances exclusively to members of a trade union organisation has frequently been recognised by courts and tribunals and it quotes specifically the Decree of 4 March 1982 issued by the Council of State in which the Council considers that the principle of equality between Belgians before the law in no way excludes persons in different circumstances receiving different treatment, provided that this is done in the public interest on the basis of objective or general criteria. The Decree further states that membership of a union could be just such an objective criterion for the granting of social advantages and that provided that the means used were proportional to the ends sought this could justify different treatment being meted out to non-union members because this could lead to an improvement in social peace and company productivity. Moreover the unemployment benefit and trade union allowance granted to union members is one possible way of adequately stimulating trade union affiliation which in turn could promote social peace and productivity in the undertaking.
32. 63. The Government considers that it is not contrary to article 20 of the Constitution or to section 1 of the Law of 24 May 1921 to grant social advantages to those who join a given representative workers' organisation when the value of those advantages is not such as to cause the worker to feel obliged to join that particular organisation rather than any other.
33. 64. In subsequent communications dated 21 August and 16 September 1986, the Government forwarded three Council of State decrees concerning appeals lodged by the Postal Workers' Federation. It pointed out that the Federation's petition had been rejected in two of the three cases. The (petition concerning) cancellation of Decree No. 182 of 30 December 1982 concerning modernisation measures in the Postal Administration, the purpose of which had been to establish a consultative body called the "supervisory panel", and the (petition concerning) cancellation of the Decree of 30 November 1983 setting up a contact committee at the head office of each regional postal administration and at the general office of the Central Postal Administration were rejected by Decrees No. 26,282 of 19 March 1986 and No. 26,284 of 25 April 1986 respectively. Decree No. 26,283 of 19 March 1986 however acceded to the petition filed by the complainant Postal Workers' Federation by cancelling the Ministerial Decree of 28 October 1983 approving the staff union of the Postal Administration as a non-profit-making association constituted to provide social assistance.

C. Further allegations

1. 65. In addition to the foregoing the Independent Union of Railway Workers (SIC) affiliated to the UNSI reported in communications dated November 1986 and January 1987 that the Belgian National Railway Corporation had forbidden it to conduct any trade union activities to such a point that disciplinary measures may be taken against any SIC leaders who dare act in the name of the union. The complainant makes specific mention of the Chairman of the SIC Mr. de Rycke who in his capacity as station master had intervened in favour of one Pauwels in a letter addressed to the Railway Board which letter was written on the headed paper of his union and in which he referred to a productivity bonus that had been paid to the worker in question because of an industrial accident that he had suffered. The answer he received stated that the claim had not been made by an "approved" organisation. The Minister of Transport with whom the matter of the recognition of the union had been broached, informed the complainant that he was powerless to change the negative attitude of the corporation.
2. 66. The SIC explains that it was created on 28 January 1983 and it was merely requesting the status of "approved" organisation with the National Corporation and not that of an organisation "recognised to sit on the joint commission". Its complaint was accompanied by a copy of a letter from the General Administration of the Belgian National Railway Corporation, dated 30 December 1986 signed by M.S. Choupe and headed "Trade union relations" which read as follows: I should, with respect to relations with the authorities, like to draw your attention to the fact that all collective claims or requests fall within the exclusive jurisdiction of recognised or approved trade union organisations; requests of a personal nature may be submitted only by the actual person concerned or by such an organisation. This practice is established by the provisions of the RGPS - Vol. 548 - paragraphs 366 and 8 and Annex I. Kindly draw the attention of your services to these provisions including regional officers and insist on their strict application. The complainant maintains that this letter should have been sent to all regional managers.

D. Further government replies

1. 67. In a reply dated 14 January 1987 the Government stated that it had no information on these matters and it had no intention of making any further comments. It added that the proceedings before the Council of State should given their formal and precise nature last a fairly long time and that it was difficult to state precisely when the decisions would be handed down.
2. 68. In a communication dated 8 May 1987 the Government transmits a copy of the report of the Council of State's Auditor who examined UNSI's appeal and found it unfounded in law and in fact and declared it irreceivable. The Government adds, however, that this report is not the formal opinion of the Council of State but rather represents an important step in the procedures.

E. The Committee's conclusions

1. 69. Pursuant to the decision contained in paragraph 9 of its 248th Report the Committee intends to consider the substance of this case taking account of all items of information currently available.
   • a) Representativity of the occupational organisations with respect to their right to sit on the National Labour Council
2. 70. The Committee observes that with respect to the criteria adopted by the Government for refusing the UNSI the right to sit on the National Labour Council and for refusing its affiliate organisations the right to sit on general negotiating committees in the public sector, the Government claims these criteria to be objective and pre-established. It does, nevertheless, recognise that the legislature did not adopt any numerical criteria in order precisely not to limit "the broad power of discretion" accorded the Government. It merely points out that the criteria adopted are the "stability" of the organisation - which it reproaches with having been formed as recently as 1982, its "solidity" - which it finds structurally too modest as compared to the three organisations which sit on the National Labour Council, and the "projection" of its work - which it finds insufficient in terms of reviews published press conferences held and advertising.
3. 71. The Committee thus observes that the criteria cited by the Government with respect to the representativity of this organisation which includes unions in both the private and public sectors and has a large membership (amounting to nearly 100,000 on the Government's own admission) are not to be found in legislation even if they are applied in practice. The Committee recalls the need for pre-established criteria to be embodied in legislation in order to avoid any possibility of partiality or abuse. Indeed it recalls that it has indicated in the past that it is not necessarily incompatible with Convention No. 87 to accord negotiating privileges to the most representative unions if a number of safeguards are provided including:
   • a) certification is to be made by an independent body;
   • b) the representative organisations are to be chosen by a majority vote of the employees in the unit concerned;
   • c) the right of an organisation which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period;
   • d) the right of an organisation other than the certificated organisations to demand a new election after a fixed period, often 12 months has elapsed since the previous election (187th Report, Case No. 796 (Bahamas) and 222nd Report Case No. 1163 (Cyprus). The very fact of ignoring the numerical criterion (nearly 100,000 members) and of considering only criteria not embodied in the law and which concern the stability and solidity of the organisation and its external "projection" means that these criteria do not appear to be pre-established once the Government itself refers to the wish of the legislature not to limit the broad power of discretion of the Government in deciding which of the most representative organisations should be invited to submit candidates to represent them on the National Labour Council. The Committee stresses this point all the more as under current Belgian legislation the consequence for the private sector of a refusal to allow the UNSI to sit on the National Labour Council will be that provisions of collective agreements concluded by its affiliated organisations with employers can be declared null and void if those provisions are at odds with the terms of an agreement concluded in the National Labour Council in application of the 1986 Law while for the public sector the consequence would be that UNSI-affiliated organisations would not be permitted to sit on general negotiating commissions which, under the 1974 Law take precedence over sectoral committees in matters of collective bargaining.
   • b) Representativity of the occupational organisations with respect to their right to sit on sectoral committees in the public sector
4. 72. The Committee notes that some of the organisations affiliated to the UNSI have been able to establish their rights as representative organisations in two of the 15 sectoral committees even though one of them is still under investigation. In the meanwhile the Government has refused to offer the other organisations affiliated to the UNSI a chance to resubmit their request to be recognised in other sectors reproaching them with being unrepresentative especially considering that the periodical membership count can be effected only once every six years.
5. 73. The Committee notes that under Belgian law interim measures had been taken on minimum trade union dues and that under section 96 of the Decree of 28 September 1984 published on 20 October 1984 to comply with section 51.4 for the first time the condition concerning minimum trade union dues had to be satisfied within four months following the publication of the section in question that is to say by 20 February 1985. Consequently - and contrary to the Government's allegation on refusing a membership recount on the grounds that consideration of the representativity criteria was pointless once the UNSI stated that in 1983 it had no members in the 13 sectors which met the criteria - UNSI-affiliated organisations should have been entitled to resubmit to the Supervisory Committee their paid-up membership count in the various sectoral committees as of 20 February 1985. Even so considering that ignorance of the law is no excuse and that the UNSI-affiliated organisations did not claim their representation rights before the Supervisory Committee by 20 February 1985 the Committee considers that this aspect of the case does not call for any further examinaton.
6. 74. Moreover and in more general reference to the criteria set in Belgian law with regard to the requirement that an organisation have a sufficient number of "paid-up members" and that it pay a "minimum trade union allowance" - in this case being 0.77 per cent of the monthly wage (sections 8 and 51 of the Law of 19 December 1974 as amended by subsequent decrees) - in order that it meet the representativity conditions in sectoral committees the Committee considers that the requirement that proof be provided of the payment of a low "mimimum trade union allowance" may constitute an objective and pre-established criterion of representativity provided that the occupational organisation in question accepts the system of enumeration. Conversely to avoid any possibility of partiality or abuse, the Committee alerts the Government to possible opening of the way for discretionary power to be exercised by the authorities through the expression "a sufficient number of paid-up members" which would be incompatible with the need for objective and pre-established criteria to the extent that the notion of "a sufficient number of paid-up members" is one which will remain vague as long as the legislation does not contain objective and pre-established criteria of a precise nature.
   • c) Scope of collective bargaining in sectoral committees
7. 75. With respect to the scope and extent of collective bargaining in sectoral committees the Committee notes that, according to the Government collective bargaining may take place in such committees on certain matters and for certain categories of workers. It notes however that this is limited in scope and extent in that the sectoral committees have jurisdiction over matters concerning the department or departments for which they have been established with the exception of those subject to negotiation in one of the general public sector negotiating committees (section 4(3) of the Law of 19 December 1974) on which a seat is conditional upon the organisation in question being an affiliate of one of the inter-occupational organisations sitting on the National Labour Council.
   • d) Trade union allowances
8. 76. With respect to trade union allowances the Committee refers to its earlier conclusions concerning the symbolic level at which they must be kept in order to ensure that in no case may any advantage derived therefrom unduly influence the choice made by workers of the organisation to which they intend to belong. The Committee insists on this principle all the more given that, in its reply the Government stated that the amount of the unemployment benefit and of the trade union allowance granted to members is a suitable means of stimulating affiliation to a given union. The Committee notes however that the Government itself admits that in order to be legal the social advantages granted to members of organisations representing workers should not be such as to make the worker feel obliged to join that union.
   • e) Other matters
9. 77. With respect to the negative consequences of non-recognition of the Independent Union of Railway Workers (SIC) which is affiliated to the UNSI as a trade union organisation recognised as being entitled to sit on joint commissions or commissions approved by the Railway Board and the refusal of that same Board to consider the claim filed by the Chairman of the SIC in connection with a personal petition concerning a member of that union on the grounds that according to railway regulations collective claims come under the jurisdiction of recognised or approved trade union organisations, and that personal claims may be filed only by the individual in person or by such an organisation the Committee considers that these railway regulations run counter to Article 3 of Convention No. 87. The Committee stresses the importance it has always attached to minority trade unions that have been denied the right to negotiate collectively being permitted to perform their activities and especially to speak on behalf of their members and to represent them in the case of an individual claim.