Definitive Report - Report No 208, June 1981

1. 97. The Cartel of Independent Trade Unions of Belgium sent, in letters dated 8 July and 18 August 1980, a complaint of violation of trade union rights in Belgium. The Government sent its observations in a letter of 16 February 1981.
2. 98. 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. The complainant's allegations

1. 99. The complaint concerns an alleged attempt by the Government to set up a monopoly of "political trade unions" in the public service. The complainant recalls that it had in the past presented a complaint (Case No. 655) against a Bill to organise the relationships between the public authorities and the unions of those workers under these authorities, a Bill which became law on 19 December 1974.1
2. 100. In the present case, the complainant alleges that a Bill of 3 December 1979 relating to the grant and payment of a trade union bonus to members of the public sector staff who belong to the so-called "representative" organisations gives an advantage to the members of these organisations to the detriment of the members who belong and subscribe to other trade union organisations. Since the complaint was presented, the Bill became law on 1 September 1980.
3. 101. The complainant refers mainly to two grievances it has with the Act in question. The first concerns the grant of a trade union bonus to certain members of the staff which would constitute a violation of trade union freedom as the workers would always let themselves be influenced by the granting of financial advantages however small they were. In this connection it explains that where the bonus exists the trade union organisations which are not included have practically no chance of survival. According to it, the bonus represents an efficient means of pressure. The second grievance raised is that of the retroactive effect, to 1978, of the Act of 1 September 1980.
4. 102. In addition, the complainant explains that the new Act makes express reference, in section 7, to the Act of 19 December 1974. This latter Act, which has still not been applied, provided that the criterion for recognition of a representative organisation was membership of an organisation sitting on the National Labour Council. According to the Act of 29 May 1952, this Council shall be made up of representatives of organisations representing the workers designated by the King from amongst the nominations put forward by the inter-occupational organisations federated at the national level. It adds that although the Cartel of Independent Trade Unions satisfies the criteria of the Act, its request to join the Council has always been refused for different reasons, the division of seats on the National Labour Council having remained unchanged since its creation.
5. 103. Moreover, the complainant sets out the reasons given by the Government during the drawing up of the Act in 1980. The Government justified the grant of the bonus on the ground that the most representative organisations have more responsibility than the others because of their close collaboration with the administrative and political authorities, particularly their participation in the collective agreement, the efficient co-management of certain services, the advice that they give in numerous consultative bodies. The Government claimed that this bonus would only be partial compensation of special efforts that the most representative organisations require from their members so as to be able to carry out the tasks entrusted to them.
6. 104. On the first point, the complainant states that the Cartel, although it should also be considered as a representative organisation according to the Trade Union Act of 20 June 1955 (still applicable as the executory decrees of the 1974 Act have not yet been adopted), has no right to the new trade union bonus set up even if its members sit on various consultative bodies. On the second point, the complainant notes that for sitting on the different Committees, the participants receive exemptions from service and their full salaries, and the so-called "political" trade union organisations receive certain subsidies from the State.

B. The Government's reply

1. 105. After drawing the general picture of the trade union situation in the public sector, the Government explains that the trade union bonus is written into the two collective agreements for the public sector dated 28 October 1977 and 26 May 1978 and derives from what had already existed for some decades in the private sector, as advantages reserved to trade unions. It states that these advantages, in very general use, are a form of union security clauses.
2. 106. According to the Government, the Bill was submitted to the Council of State for its opinion on 18 July 1979. The Council considers that the grant of a trade union bonus only to members of the public sector staff who are affiliated to the most representative trade union organisations is not contrary to the Constitutional and legal principle of freedom of association, on the condition that the amount of the bonus is not such as to make the granting of it, in fact, a pressure or constraint on the person in deciding his membership of such a trade union organisation.
3. 107. The Government also states that although the Council of State, in the decree given regarding the Bill in question, did not deal with the principle of equality and non-discrimination, one can, following its previous case law on the matter, come to the conclusion that this regulating is not contrary to the Constitutional principles which govern the subject. Equality before the law is not infringed when an advantage is given to all persons who are in the same situation, even more when they form a set category objectively determined stated the Council of State in a decree of 3 February 1967 handed down in another matter. The Government claims that such is the case of the trade unionists and explains that the members of the most representative trade union organisations can be considered as an objectively determined category: their organisations must, in effect, so as to be categorised as most representative organisations, satisfy the criteria of representativity determined beforehand and objectively in a general way by the legislator. The Government also refers to the Belgian jurisprudence to state as regards the distinction which operates between the trade unions that there is no violation of freedom of association if the trade union organisations are considered to be on an equal footing in so far as each of them has genuinely contributed to the development of the economic life and social peace and has taken part in collective bargaining. It adds that the exclusion of the small trade unions can be justified if they do not have it in their power to bring about efficient aid in the realisation of these objectives.
4. 108. The Government explains that the Act has decided for each sector (teaching, administration of the State, army) which shall be the most representative trade union organisations whose members shall receive the bonus. It states that its intention is that the division shall be between the members of organisations which are the closest to the "base". In principle, priority shall be given, among the staff members of the administrations and other services of the State, to those who are members of trade union organisations qualified to sit on Committees of the sector, and if there are none, to traditional trade union organisations. According to the Government, it is incorrect to claim that the three traditional trade union organisations will ipso facto benefit from the bonus; others could benefit from it if they satisfy the conditions laid down. The Government points out that it cannot be maintained that this system was an attempt to set up a monopoly for the benefit of certain so-called "traditional" trade unions because they were represented on the National Labour Council.
5. 109. Nevertheless, the Government admits that as it claims it was impossible to supervise the internal representativity for the years 1977, 1978 and 1979, it had to provide for a transition period and adopt criteria of external representativity, that is in particular, the fact of having been affiliated to an organisation sitting on the National Labour Council. Consequently, for the three years referred to, only the members of the three traditional trade union organisations can be taken into consideration in the granting of the bonus.
6. 110. Finally, it states that the amount of the bonus will be fixed so as not to pressure or restrain those involved and this will be under the control of the courts and tribunals and the Council of State. For each of the years 1977 and 1978, the amount has been fixed at 700 Belgian francs which, according to the Government, does not constitute a real means of pressure.

C. The Committee's conclusions

1. 111. In the present case, the complainant alleges an attempt to set up a monopoly of "political trade unions" in the public sector by the grant of a trade union bonus to certain staff members in the public sector who are members of the so-called "representative" organisations to the detriment of staff members who are affiliated and subscribing to other trade union organisations. The Government considers that the granting of the bonus in question does not imply any discrimination in favour of the traditional trade union organisations.
2. 112. Generally, the Committee has always considered that the possibility for a government to grant an advantage to one particular organisation or withdraw that advantage from it entails the risk that one trade union will enjoy an unfair advantage or disadvantage in relation to others which thereby constitutes an act of discrimination; by doing this, the government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong. In the present case, the Committee notes that the advantage has not been granted to the organisation itself but to the paying members. However, the grant of a bonus could equally influence the workers' decision to join one particular trade union, yet the freedom of choice of those concerned in the matter is a right expressly stated in Convention No.
3. 113. The International Labour Conference, referring to the question of the representative character of trade unions during the discussion of the draft of Convention No. 98 on the Right to Organise and Collective Bargaining, admitted to a certain extent that distinctions can sometimes exist between the various unions concerned according to how representative they are on the condition that the decision as to the most representative organisations be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse.
4. 114. In the present case, the retroactive effect of the grant of the bonus does not seem to have been operated according to these principles in that for the years 1977 to 1979 it was only given to staff members of the so-called "traditional" organisations according to the Government's own statement.
5. 115. On the other hand, the criteria which will now be applied appear to satisfy the principles of objective determination at least for certain sectors since it seems that members of any representative trade union organisation in a particular sector will be entitled to receive the bonus even if it is not an organisation belonging to the "traditional organisations". Nevertheless, the Committee notes that in other sectors the staff receive the bonus only if they belong to staff associations affiliated to an organisation represented on the National Labour Council.
6. 116. Finally, the Committee notes that the amount of the bonus, which is raised to 700 Belgian francs per person per year, does not seem to constitute a real means of pressure leading to the conclusion that the public authorities intended, through the advantages granted to certain workers, to influence unduly the workers' choice as regards the organisation to which they intend to join. As for the future, the Committee considers that it is important that the amount of the bonus in question does not exceed a symbolic level.