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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belgium (RATIFICATION: 1951)

Other comments on C087

Observation

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The Committee notes the observations of the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB), dated 31 August 2023, and as well as the Government’s reply, most of which relate to matters examined in the present comment.

Article 3 of the Convention. Right of trade union organizations to organize their activities and formulate their programmes. Malicious obstruction of traffic (section 406 of the Criminal Code). In its previous comments, the Committee noted that, according to the above-mentioned trade union organizations, the offence of malicious obstruction of traffic provided for in section 406 of the Criminal Code is detrimental to the exercise of the right to strike, while the Government observed that the section is not aimed at the exercise of this right, but rather at all instances where road barrages are erected with malicious intent, regardless of the underlying motive. In the two cases referred to by the Government (the Port of Antwerp case and the Cheratte viaduct case), the courts considered that the fact that an obstruction to traffic was organized to support trade union demands did not necessarily prevent the act of obstructing traffic from being qualified as malicious within the meaning of section 406 of the Criminal Code. In the Cheratte viaduct case, the Committee noted that on 19 October 2021, the Liège Court of Appeal upheld the verdict issued by the Criminal Court, maintaining the prison sentences, deeming that the defendants were guilty of deliberate obstruction of traffic and that the right to strike could not be used in defence. Noting that the FGTB envisaged appealing before the Court of Cassation against the decision of the Liège Court of Appeal of 19 October 2021, the Committee requested the Government to provide information on the application of section 406 and on the outcome of the appeal before the Court of Cassation. The Committee notes that, in a ruling dated 23 March 2022, the Court of Cassation dismissed the appeal against the ruling of the Liège Court of Appeal, confirming that the criminal penalty was not disproportionate in respect of freedom of expression and the right of peaceful assembly, as the right to strike could be exercised without undermining freedom of movement. The trade union organizations also point out that the Court of Cassation does not condemn the facts that: (i) the Court of Appeal did not examine the necessity of the criminal penalty, including with regard to passive participation in the blockages; and (ii) heavier penalties are imposed when the person concerned holds responsibilities in the trade union. Lastly, the Committee notes that the trade union leaders and activists convicted on 19 October 2021 by the Liège Court of Appeal lodged an application with the European Court of Human Rights on 23 July 2022.

With regard to legislation, the Committee notes the information provided by the trade union organizations and the Government indicating that a draft reform of the Criminal Code is currently under discussion at the government level. As to section 406, they indicate that regarding the moral element, it is proposed to replace the word “maliciously” by the words “with intent to harm”. These words indicate that the offence should be committed with “the intention to do harm, to undermine the rights of society or individuals or to harm others”. Moreover, the draft sections are supplemented by a new provision establishing a clause for the protection of fundamental rights and freedoms. According to the Government, it was important to make explicit provision for the fact that people exercising their fundamental rights, such as the right to strike, freedom of assembly, freedom of association, and so forth, cannot be prosecuted on the basis of the traffic obstruction provisions. The trade union organizations and the Government nevertheless observe that the rights to which this clause refers are not absolute, and may be subject to restrictions, justified by the need to ensure respect for other competing fundamental rights. The Committee requests the Government to provide information on any developments concerning the ongoing reform of the Criminal Code, and in particular the amendment of section 406.

Prison services. Resolution of disputes. In its previous comments, the Committee noted the allegations by the above-mentioned trade union organizations, according to which any dispute concerning the negotiation of a minimum service should be resolved through an independent body, such as the judicial authorities, and not by the ministry concerned, but that under section 19 of the Act of 23 March 2019 on the organization of prison services and prison staff, if the competent advisory committee does not submit an operational plan in the three months following the entry into force of the Act, either because it has not taken a decision or because no agreement has been reached in the committee, the minister shall determine the services to be provided and the measures to be taken. The Committee noted the Government’s observation that the minister intervened only as a last resort – that is, in the absence of an agreement arising from the various stages of consultation and dialogue. Noting the information provided by the Government to guarantee a minimum service, the Committee requested the Government to provide additional information on the compensatory guarantees or resolution mechanisms applicable in disputes in the prison services. The Committee notes that the Government refers in particular: (i) to the Royal Decree of 19 November 2019, which, pursuant to sections 15 and 16 of the Act of 23 March 2019, defines the consultation and negotiation procedures to be followed in the event of industrial disputes, with or without strike notice; and (ii) Memorandum of Understanding No. 351, concluded on 19 April 2010 within Sectoral Committee III Justice, relating to the mutual commitments of the Federal Public Service (SPF) Justice, the General Directorate of Prisons and the public trade unions representing the staff of the external services of prisons in the context of strengthening social dialogue and conflict management within the prison system. The Committee notes that the Memorandum of Understanding defines the modalities of dispute management and confirms the intention of the partners to resolve industrial disputes through social dialogue and, where appropriate, independent mediation. The Committee also notes the concern expressed by the trade union organizations regarding the inability of prison officials to effectively exercise their right to strike due to structural understaffing in prisons, as well as the Government’s reply in this regard. While noting the information provided by the Government and the trade union organizations concerning the establishment of a minimum service, the Committee requests the Government to continue to provide information on the resolution mechanisms applicable in disputes in the prison services.

Violations of the right to strike. Replacement of striking workers by students. The Committee notes the concerns raised by the FGTB, the CSC and the CGSLB regarding the possibility for employers to replace striking workers with students. The trade union organizations observe that, although they often support the enterprise’s workers in their struggle, students have no choice but to agree to enterprises’ requests to work during a staff strike, or risk not having their student contracts renewed. The Committee notes the Government’s indication that on 1 June 2023, the Federal Minister of Labour submitted a draft legislative text to the social partners in the National Labour Council (CNT) for their opinion, prohibiting the replacement of striking workers by workers on student contracts. Taking due note of this initiative, the Committee trusts that the Government, in collaboration with the social partners, will soon be able to announce an end to the practice of replacing striking workers with workers on student contracts, which constitutes a serious obstacle to the exercise of the right to strike.

Increase in the number of orders issued upon ex parte applications. The above-mentioned trade union organizations allege an upsurge in the use of summary proceedings by employers to prevent strike pickets. They explain that: (i) during a recent industrial dispute concerning the franchising of a major chain’s stores, a large number of ex parte applications were lodged by employers alleging a risk of assaults, and (ii) the urgent applications judges hearing the case declared the applications to be admissible and well-founded in several judicial districts in Brussels, Flanders and Wallonia, effectively depriving the workers of the right to set up picket lines. The trade union organizations observe that these decisions impose drastic general bans (some covering the whole of Belgium) on striking workers, who risk very heavy fines. They denounce the absence of a fair balance between the interests at stake, with the courts seizing, in their view, exorbitant power in the dispute, when the absolute necessity that can justify recourse to ex parte applications is of strict interpretation. Although some courts have set aside three orders, the trade union organizations believe that the number of unfavourable orders is on the rise.

The Committee notes the Government’s indications concerning the summary proceedings before the President of the Court of First Instance, reserved for cases of absolute necessity in which the opposing party is not summoned. The Government reports that: (i) there must be urgency, enabling the applicant to obtain an immediate protection order. Urgency cannot be understood as the “mere fear” of irreparable harm, but as the existence or threat of very serious harm. Urgency is assessed by the judge; (ii) the president may take measures that are not timebound; (iii) presidential orders are enforceable by operation of law. Neither appeals nor applications by third parties to set aside such orders suspend enforcement; (iv) they may be accompanied by a fine of 500 to 1,000 euros per person per offence; (v) an appeal may also be lodged against the order, by the applicants or intervening parties. A third party that has suffered harm as a result of the order may apply to have set it aside. On this point, the Government observes that the trade union organizations note that three courts have recently set aside three orders on the basis of applications by third parties.

The Committee notes the information provided by both the Government and the trade union organizations. It notes that, according to the latter, the use by certain employers of the ex parte application procedure is intended to prevent workers from exercising an essential aspect of the right to strike, namely picketing, whereas this application procedure is reserved for cases of absolute necessity which, as the Government confirms, is of strict interpretation. On the question of the presence, at the entry to the workplace, of strike pickets aimed at ensuring the success of the strike by persuading the workers concerned to stay away from work, the Committee wishes to recall that it considers that: (i) in so far as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can only be accepted where the action ceases to be peaceful; and (ii) it is however necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises (see the 2012 General Survey on the fundamental Conventions, paragraph 149). In view of the foregoing and observing that the allegations made by the trade union organizations concern recent events, the Committee requests the Government to provide information on the number and results of judicial decisions handed down under the ex parte application procedure, with regard to the issue of strike pickets. The Committee requests the Governmentto indicate the amount of fines incurred, if applicable. The Committee also requests the Government to provide information on the number of appeals lodged and results of those appeals.