REPRESENTATION (article 24) - BELGIUM - C001, C004, C006, C014, C041, C087, C089, C098, C102 - 1984

Report of the Committee set up to examine the representation made by the General Federation of Labour of Belgium under article 24 of the Constitution alleging the failure by Belgium to implement international labour Conventions Nos. 1, 4, 6, 14, 41, 89 and 102

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed. C087, C098: Referred to the Committee on Freedom of Association ( Case No. 1182, 230th Report, paras. 222-270, BO. Vol. LXVI, 1983, S)

Complaint Procedure

1. 1. By three letters dated 15 February and 4 March 1983, the General Federation of Labour of Belgium (FGTB), referring to article 24 of the ILO Constitution, made a representation to the Office alleging failure by the Government of Belgium to implement the Social Security (Minimum Standards) Convention, 1952 (No. 102), the Hours of Work (Industry) Convention, 1919 (No. 1), the Night Work of Young Persons (Industry) Convention, 1919 (No. 6), the Night Work (Women) Convention, 1919 (No. 4), the Night Work (Women) Convention (Revised), 1934 (No. 41), the Night Work (Women) Convention (Revised), 1948 (No. 89), the Weekly Rest (Industry) Convention, 1921 (No. 14), 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).
2. 2. The representation relates to a number of Conventions to which Belgium is a party and which remain in force for it, (Endnote_1) except Convention No. 4 - denounced by virtue of the subsequent ratification of Convention No. 41 - and Convention No. 41 - itself denounced by virtue of the subsequent ratification of Convention No. 89.
3. 3. The relevant provisions of the Constitution of the International Labour Organisation concerning the submission of representations read as follows:
4. Article 24
5. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
6. Article 25
7. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
8. 4. The procedure for the examination of representations is governed by the Standing Orders as revised by the Governing Body at its 212th (March 1980) Session. (Endnote_2)
9. 5. In accordance with article 2, paragraphs 1 and 2, of the Standing Orders, the Director-General brought the representation before the Governing Body together with all the elements of information in his possession concerning its receivability.
10. 6. At its 223rd (May-June 1983) Session, the Governing Body examined the receivability of the representation and considered that it fulfilled the conditions provided for in article 2 of the Standing Orders. At the same time, it decided to refer the aspects of the representation relating to the implementation of Conventions Nos. 87 and 98 to the Committee on Freedom of Association.(Endnote_3) It then decided to set up a Committee as provided for in article 3, paragraph 1, of the Standing Orders, pursuant to the recommendations made by its Officers in a report submitted to the same session.(Endnote_4) The Committee was composed of Mr. A. Malintoppi (Government member, Italy), Chairman, Mr. N. Said (Employers' member) and Mr. H. Maier (Workers' member).
11. 7. The Committee met in Geneva on 21 June 1983. In accordance with article 4, paragraph l(a) and (c) of the Standing Orders, the Committee decided (a) to invite the FGTB to communicate any further information it might wish to bring to the Committee's knowledge; (b) to invite the Government for its observations on the representation, it being understood that any additional information received from the FGTB would also be communicated to the Government.
12. 8. The FGTB transmitted information in a letter dated 19 July 1983. The Government forwarded its observations on the alleged facts in two communications dated 4 October and 23 December 1983. The Committee then held a meeting in Geneva on 22 February 1983.
13. Examination of the representation
14. 9. In accordance with the Committee's terms of reference, its examination of the representation related to:
15. (a) the situation relating to Convention No. 102; and
16. (b) the situation relating to the Conventions on hours of work, weekly rest and night work, viz. Conventions Nos. 1, 6, 14 and 89.
17. A. Social Security (Minimum Standards) Convention, 1952 (No. 102)
18. Allegation made
19. 10. The General Federation of Labour of Belgium (FGTB) alleges that the Government of Belgium has failed to comply with the obligations incumbent on it by virtue of the ratification of the Social Security (Minimum Standards) Convention, 1952 (No. 102), and in particular Article 68 relating to equality of treatment of non-national residents.
20. 11. The FGTB considers that the failure by Belgium to comply with its obligations under Article 68 of the Convention arises from section 9, paragraph l(a), of Royal Order No. 118 of 23 December 1982 respecting the establishment of employment areas.
21. 12. Section 9, paragraph l(a), of Royal Order No. 118 provides that:
22. "Foreign managerial staff and researchers employed by undertakings established in an employment area shall not be subject during their employment in the employment area:
23. a) to the provisions of the Act of 27 June 1969 to revise the Legislative Order of 28 December 1944 respecting workers' social security;
24. .........."
25. 13. The FGTB states that the above provisions of Royal Order No.18 create between Belgian workers and certain foreign workers discrimination contrary to Article 68 of Convention No. 102. In support of its allegation, it cites the Belgian Council of State which, in an opinion of 16 November 1982 on the Bill for the Royal Decree, took a similar position. (Endnote_5)
26. Observations of the Government
27. 14. In its communication of 23 December 1983, the Government mentions a Bill "to be voted shortly" which should make it possible to do away with "certain reservations expressed about the compatibility of Royal Order No. 118 with Convention No. 102". This Bill is intended to supplement, paragraph l(a) of section 9 of Royal Decree No. 118 by the following text:
28. "without prejudice to the application of international conventions and regulations of the European Communities."
29. 15. The Government further states that "the exception (from application of the provisions of the law) will only affect persons temporarily seconded to an employment area, which means that they will remain subject to the legislation governing the head office of the undertaking seconding them".
30. The Committee's conclusions
31. 16. The question raised by the representation in respect of Convention No. 102 relates to the compatibility between Article 68 of the Convention and section 9, paragraph l(a), of Royal Order No. 118 of 23 December 1982 respecting the establishment of employment areas.
32. 17. Article 68 of the Convention reads as follows:
33. Article 68
34. 1. Non-national residents shall have the same rights as national residents: Provided that special rules concerning non-nationals and_ nationals born outside the territory of the Member may be prescribed in respect of benefits or portions of benefits which are payable wholly or mainly out of public funds and in respect of transitional schemes.
35. 2. Under contributory social security schemes which protect employees, the persons protected who are nationals of another Member which has accepted the obligations of the relevant Part of the Convention shall have, under that Part, the same rights as nationals of the Member concerned; Provided that the application of this paragraph may be made subject to the existence of a bilateral or multilateral agreement providing for reciprocity.
36. 18. The Committee notes that Article 68 of the Convention establishes the principle of equality of treatment between national and non-national residents. It also establishes the measures for applying this principle as regards benefits payable out of public funds and transitional schemes (paragraph 1) and as regards contributory social security schemes for employees (paragraph 2).
37. 19. The Committee notes that the Act of 27 June 1969, to which an exception is made by the provision at issue in Royal Decree No. 118, establishes a contributory social security scheme of the type referred to in paragraph 2 of Article 68 of the Convention. It is this provision of the Convention, therefore, that applies to the present case.
38. 20. In accordance with paragraph 2 of Article 68 of the Convention, the application of equal treatment depends on two conditions. The first condition is achieved ipso jure when the non-national resident is a national of another member State which has accepted the obligations arising from the relevant Part of Convention No. 102. (Endnote_6) The second condition is potential in nature: equality of treatment may be made subject to the existence of a bilateral or multilateral agreement of reciprocity.
39. 21. In the light of the foregoing, the Committee considers that, as it now stands, paragraph l(a) of section 9 of Royal Order No. 118, by excluding, purely and simply, the persons in question, is not in conformity with the provisions of Article 68, paragraph 2, of the Convention, which prescribes equality of treatment, even if subject to the two conditions mentioned above.
40. 22. In this connection, the Committee notes that any proposed addition to paragraph l(a) of section 9 of Royal Order No, 118 which aims to preserve the application of international conventions should in particular ensure the application of Convention No. 102, including Article 68, paragraph 2, of the Convention.
41. 23. The Government has also stated that the exception will apply only to persons temporarily (Endnote_7) on secondment in Belgium, who will remain subject to the legislation governing the head office of the undertaking seconding them. This statement reflects the position taken by the Government in its report to the Crown on Royal Order No. 118, (Endnote_8) which refers in this connection to the consistent rulings of the National Social Security Board. The Committee notes that the statement of the Belgian Government might be considered in conformity with Belgium's obligations under Convention No. 102 so long as the undertaking which made a temporary secondment in Belgium had its registered office in a country which was also party to the Convention. In the Committee's view, the condition of persons working temporarily in Belgium without any secondment by a given undertaking should also be considered. In this case too, the Committee considers that the application of the Convention should be guaranteed.
42. 24. While taking due note of the Government's statement about the scope it intends to give in practice to the exception provided for in paragraph 1(a) of section 9 of Royal Order No. 118, the Committee considers that it would be necessary to ensure under legislation that any exception allowed could not under any circumstances run counter to the relevant provisions of Convention No. 102.
43. B. Hours of Work (Industry) Convention, 1919 (No. 1), Night Work of Young Persons (Industry) Convention, 1919 (No. 6), Weekly Rest (Industry) Convention, 1921 (No. 14), and Night Work (Women) Convention (Revised), 1948 (No. 89)
44. Allegations made
45. 25. The General Federation of Labour of Belgium (FGTB) alleges that the Government of Belgium has failed to comply with the obligations incumbent on it by virtue of the ratification of the following four Conventions: Hours of Work (Industry) Convention, 1919 (No. 1); Night Work of Young Persons (Industry) Convention, 1919 (No. 6); Weekly Rest (Industry) Convention, 1921 (No. 14); and Night Work (Women) Convention (Revised), 1948 (No. 89).
46. 26. The FGTB considers that the failure by Belgium to comply with its obligations under the above-mentioned Conventions arises from the exceptions which may be authorised under section 2, paragraph 1, of Royal Order No. 179 of 30 December 1982 respecting experiments in the arrangements of working time in undertakings for the purpose of redistributing the time available.
47. 27. Section 2, paragraph 1, of Royal Order No. 179 reads as follows:
48. "In order to make it possible to carry out experiments in the arrangement of working time and only in so far as is necessary for this purpose, the Crown may allow employers to depart temporarily from the following legislation and from orders made under such legislation, from the collective labour agreements and the decisions of joint committees which have been given binding force by the Crown and which relate to such legislations:
49. 1. sections 11 to 38 bis of the Labour Act of 16 March 1971;
50. ........."
51. 28. The FGTB states that the Government has, by Royal Order No. 179, assumed the right to create in certain undertakings a system departing from a number of laws for protecting workers, granting itself at the same time the power not to implement the above-mentioned international labour Conventions.
52. Observations of the Government
53. 29. In its communication of 4 October 1983, the Government rejects the allegation that Royal Order No. 179 may infringe the principles laid down in the international Conventions, either in law or in fact.
54. 30. The Government states that Royal Order No. 179 (adopted on the basis of the Act of 2 February 1982 granting certain special powers to the Crown) establishes a system that is both experimental and conventional to allow undertakings to create new jobs provided they are able to make another arrangement of working time than that resulting from the application of existing labour regulations.
55. 31. As regards the legal aspect, the Government points out, on the one hand, that the above-mentioned Act of 2 February 1982 does not empower the Crown to suspend the application of laws whereby international conventions have been approved and, on the other, that Royal Order No. 179 may not, any more than the other Royal Orders issued by virtue of special powers under the Act of 2 February 1982, infringe the principles laid down in the international conventions, without it being necessary for the text to mention the obligation to observe those principles since the Order contains no provisions for making exceptions or modifications.
56. 32. In this connection, the Government recalls that the Minister of Employment and Labour, as signatory, together with the employer and the workers' representatives, of agreements on the arrangement of working time, vouches in this instance for the observance of international labour Conventions since he would be unable to sign any such agreement that infringed the provisions of international conventions. Moreover, the committee on the application of agreements on the arrangement of working time, which is a tripartite body responsible to the Minister, may, by stating its opinions, assist the Minister in examining draft agreements and draw his attention to any possible infringements of international labour Conventions.
57. 33. The Government states that the exceptions provided for, especially in the Labour Act of 16 March 1971 and in section 2, paragraph 1, of Royal Order No. 179, are justified by the fact that it is essential to be able to waive certain provisions of labour law when a strict application of such provisions would prevent experiments in working time arrangements from being carried out. The flexibility needed for ensuring that they work smoothly may not be compatible with a strict application of existing texts. At ail events, the possibility of departing from the texts is granted only for the purposes of the experiments and within the limits required for ensuring that they work smoothly. In accordance with section 2, paragraph 2, of Royal Order No. 179, the departures in question may be granted only within the framework of an agreement on the arrangement of working time signed by the Minister, the employer or employers1 representatives and the workers' representatives of the undertakings concerned.
58. 34. Lastly, the Government states that the departures allowed may not result in making working hours longer than the limits established by Convention No. 1, in failing to grant weekly rest in accordance with Convention No. 14 or in requiring young persons or women to work at night in conditions not authorised by Conventions Nos. 6 and 89.
59. 35. The Government has also attached to its communications of 4 October and 23 December summaries of nine agreements on the arrangement of working time.
60. The Committee's conclusions
61. 36. The representation raises the question of the effect of the power of departure granted by section 2, paragraph 1, of Royal Order No. 179 on the proper application of international labour Conventions Nos. 1, 6, 14 and 89.
62. 37. The Committee notes that the aforesaid provision of Royal Order No. 179 does in fact authorise a temporary departure, wholly or partly, from the legal provisions relating to hours of work and rest periods contained in sections 11 to 38 bis of the Labour Act of 16 March 1971, these provisions cover Sunday rest, hours of work, hours of work for young workers, night work and the prohibition to work outside the hours of work stipulated in the work rules.
63. 38. The Committee notes the Government's observations on the question, especially that neither the Act of 2 February 1982 nor Royal Order No. 179 grants the Crown any power to suspend the application of the laws whereby international conventions are approved and that safeguards against any possible infringement are found in the procedures for concluding and applying the agreements on the arrangement of working time.
64. 39. Accordingly, the Committee has examined the nine agreements (Endnote_9) of this type communicated by the Government, from the standpoint of their conformity with Conventions Nos. 1, 6, 14 and 89.
65. 40. The examination shows that these are experimental arrangements lasting up to two years and affecting a limited number of workers but involving the creation of new jobs.
66. 41. The working time arrangements thus established nave the following features:
67. - full-time or part-time shift work on one or more days of the week, including Sunday, of variable duration but 12 hours at most;
68. - variable weekly hours of work up to 30 at most for variable wages corresponding to the equivalent of between 36 and 40 hours of work;
69. - in the case of the ETAP-MALLE agreement, the arrangement is for the some 30 persons concerned to work four days a week (with Sunday off), 9 hours and 15 minutes a day, with an average week of 37 hours and 10 minutes;
70. - the departures authorised in these enterprise agreements do not affect the legal provisions concerning the night work of women and young workers.
71. 42. To sum up, the working time arrangements considered relate to the distribution of weekly hours of work, shift work and weekly rest. The provisions of the international labour Conventions in question that are applicable in these cases are the following:
72. (i) Distribution of weekly hours of work Convention No. 1, Article 2(b):
73. Where by law, custom, or agreement between employers' and workers' organisations, or, where no such organisations exist, between employers' and workers' representatives, the hours of work on one or more days of the week are less than eight, the limit of eight hours may be exceeded on the remaining days of the week by the sanction of the competent public authority, or by agreement between such organisations or representatives; provided, however, that in no case under the provisions of this paragraph shall the daily limit of eight hours be exceeded by more than one hour.
74. (ii) Shift work Convention No. 1, Article 2(c):
75. Where persons are employed in shifts it shall be permissible to employ persons in excess of eight hours in any one day and forty-eight hours in any one week, if the average number of hours over a period of three weeks or less does not exceed eight per day and forty-eight per week.
76. (iii) Weekly rest Convention No. 14, Article2:
77. 1. The whole of the staff employed in any industrial undertaking, public or private, or in any branch thereof shall, except as otherwise provided for by the following Articles, enjoy in every period of seven days a period of rest comprising at least twenty-four consecutive hours.
78. 2. This period of rest shall, wherever possible, be granted simultaneously to the whole of the staff of each undertaking.
79. 3. It shall, wherever possible, be fixed so as to coincide with the days already established by the traditions or customs of the country or district.
80. 43. In the light of the relevant provisions of Conventions Nos. 1 and 14, the Committee may formulate the following conclusions concerning the conformity with these provisions of the working time arrangement schemes examined:
81. (i) Distribution of weekly hours of work: The ETAP agreement, by establishing a working day of 9 hours and 15 minutes, is not in conformity with Article 2(b) of Convention No. 1, in so far as the daily excess is 15 minutes longer than the Convention allows.
82. (ii) Shift work: The working time arrangements examined do not infringe the provisions of Article 2(c) of Convention No. 1, which do not fix daily limits provided the average hours of work do not exceed 8 per day and 48 per week.
83. (iii) Weekly rest: The working time arrangements examined do not infringe Article 2 of Convention No. 14, which provides that the workers concerned shall enjoy at least one day of rest during each seven-day period (paragraph 1) but allows flexibility in determining the rest period during that seven-day period (paragraphs 2 and 3).
84. The Committee's recommendations
85. 44. The Committee recommends the Governing Body:
86. (1) to approve this report, and in particular the following conclusions:
87. A. Regarding Convention No. 102:
88. (i) Section 9, paragraph 1, of Royal Order No. 118 of 23 December 1982 respecting the establishment of employment areas, by providing that certain foreign workers shall not be subject to the applicable Belgian social security scheme, is not in conformity with Article 68, paragraph 2, of the Social Security (Minimum Standards) Convention, 1952 (No. 102), inasmuch as this provision, while allowing that the application of equal treatment to non-national residents may be made subject to the existence of an agreement of reciprocity, does not allow the exclusion pure and simple of non-national residents from the application of national legislation.
89. (ii) The amendment of Section 9, paragraph i(a), of Royal Order No. 118, by the addition of "without prejudice to the application of international conventions and regulations of the European Communities", would ensure the observance of Article 68, paragraph 2, of Convention No. 102, in so far as an undertaking making a temporary secondment of persons in Belgium has its registered office in a. country which is also a party to the Convention.
90. (iii) The position of persons temporarily working in Belgium without being seconded temporarily by a given undertaking should also be considered, so as to ensure that Convention No. 102 is respected also in these cases.
91. (iv) The Government should be asked to send the International Labour Office the text of the Bill to amend Royal Order No. 118 as soon as it is adopted and to supply full information on the application of the provisions called in question in order to enable the Committee of Experts on the Application of Conventions and Recommendations to ensure that national law and practice are consistent with the provisions of Convention No. 102.
92. B. Regarding Conventions Nos. 1, 6, 14 and 89:
93. (v) The Government should, when authorising agreements on the arrangement of working time, ensure that they observe in every case the provisions of ratified Conventions Nos. 1, 6, 14 and 89.
94. (vi) The Government should communicate to the ILO the texts of future agreements on the arrangement of working time so as to enable the Committee of Experts on the Application of Conventions and Recommendations to ensure that they are consistent with the above-mentioned international labour Conventions.
95. (2)To declare closed the present procedure instituted as a result of the representation by the General Federation of Labour of Belgium (FGTB) concerning the application by the Government of Belgium of Conventions Nos. 1, 6, 14, 89 and 102.
96. Geneva, 22 February 1984.
97. (Signed) A. Malintoppi, Chairman
98. N. Saïd
99. H. Maier
100. Endnote 1
101. Convention No. 1, ratified on 6 September 1926; Convention No. 6, ratified on 12 July 1924; Convention No. 14, ratified on 19 July 1926; Convention No. 87, ratified on 23 October 1951; Convention No. 89, ratified on 1 April 1952; Convention No. 98, ratified on 10 December 1953; and Convention No. 102, ratified on 26 November 1959.
102. Endnote 2
103. See Official Bulletin, Vol. LXIV, 1981, Series A, No. 1, pp. 93-95.
104. Endnote 3
105. See in this connection the 230th Report of the Committee on Freedom of Association, paras. 222-270, approved by the Governing Body at its 224th (November 1983) Session.
106. Endnote 4
107. Document GB.223/14/15.
108. Endnote 5
109. Moniteur belge (Official Bulletin), 29 Dec. 1982, pp. 12359-12360.
110. Endnote 6
111. Belgium has accepted Parts II to X, namely all social security branches covered by Convention No. 102. The Act of 27 June 1969, however, does not refer to the employment injury benefits covered by Part VI of Convention No. 102; moreover, this Part is no longer applicable by virtue of Article 29 of the Employment Injury Benefits Convention, 1964 (No. 121), subsequently ratified by Belgium.
112. Endnote 7
113. The Committee notes that Regulation No. 1408/71 of the Council of the European Communities allows an exception for temporary secondment in certain conditions and for a limited period.
114. Endnote 8
115. Moniteur belge (Official Gazette), 29 Dec. 1982, p. 15356.
116. Endnote 9
117. Bandag Europe agreement, Duracell agreement, ETAP agreement, De Lelie agreement, Philips-Lommel agreement, Philips-Roulers agreement, RBP agreement, Sprague Electromag agreement, Sylvania agreement.