Informe definitivo - Informe núm. 230, Noviembre 1983

1. 222. In a communication dated 15 February 1983, the Belgian General Federation of Labour (FGTB) presented a complaint alleging the violation of trade union rights in Belgium. On 25 March 1983 the FGTB sent additional information in support of its complaint.
2. 223. The Government supplied its observations in a communication dated 2 May 1983.
3. 224. 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 allegation

1. 225. In its communications dated 15 February and 25 March 1983, the Belgian General Federation of Labour called into question two Royal orders adopted in pursuance of the Act of 2 February 1982 attributing certain special powers to the King.
2. 226. According to the complainant trade union, section 3 of Royal Order No. 180 dated 30 December 1982 concerning certain measures relating to wage moderation and which is simply the prorogation of measures taken in February 1982 (Royal Order No. 11 dated 22 February 1982), modifies the indexation system applied to wages, whether established by legislation or collective agreements, by stipulating that only the part of the wage equivalent to the amount of the guaranteed monthly wage will be subject to indexation on the basis of the wage due for the month of December 1982; and by establishing a new reference index under section 4 of Royal Order No. 180, which provides that after two wage readjustments in 1983 on the basis of the consumer price index, wage indexation will be determined on the basis of the average index of the last four months.
3. 227. According to the complainant organisation, these changes in the indexation system led to a reduction in the purchasing power of workers in the order of 4 per cent in 1982 and 3 per cent in 1983.
4. 228. Furthermore, the complainant trade union emphasises that section 6 of Royal Order No. 180 blocks until 31 December 1984 any increase in wages and other financial benefits, including those due under the provisions of collective agreements.
5. 229. The complainant organisation points out that as a result of these measures, the Belgian Government has amended, in violation of Article 3 of Convention No. 87 and Article 4 of Convention No. 98, the Belgian system of indexation which has always used collective labour agreements as its legal basis and which has always been the result in Belgium of free bargaining between workers' and employers' organisations.
6. 230. Furthermore, the complainant alleges that section 2, paragraph l, subparagraph 3 of Royal Order No. 179 dated 30 December 1982 authorises the Minister of Employment and Labour to relieve certain employers of obligations resulting from collective agreements by granting exceptions to the provisions of sections 19, 26 and 31 of the Act of 5 December 1968 concerning collective labour agreements and joint commissions, in violation of Article 4 of Convention No.
7. 231. The complainant organisation alleges that with a view to the negotiation of the arrangement of working time this same Royal Order establishes a system in which workers' representatives may be elected from outside any of the representative workers' organisations (section 1(4)(b) and (f), paragraph 2). These representatives would be empowered to negotiate the arrangement of working time, notwithstanding the provisions of collective agreements and numerous provisions established under the labour law. The representatives of the staff may, in order to consolidate the experience acquired, conclude new collective agreements for indefinite periods of time outside any of the representative workers' organisations (section 18).
8. 232. The complainant alleges that these measures violate not only Article 4 of Convention No. 98 but also the right enjoyed by workers to elect their representative in full freedom and to organise their activities (Article 3 of Convention No. 87).

B. The Government's reply

1. 233. In its reply the Government confirms that Royal Orders Nos. 179 and 180 were issued on the basis of the Act of 2 February 1982 attributing certain special powers to the King. The Government points out that this Act is designed to achieve four objectives: economic and financial recovery, the reduction of public expenditure, the reorganisation of public finances and the creation of jobs.
2. 234. As regards Royal Order No. 180, the Government points out that this Order is designed to limit wage increases in both the public and private sectors in order to promote employment. It points out that the measure taken under section 3 of Royal Order No. 180, which establishes that indexation will apply only to the part of the wage equivalent to the guaranteed monthly income (30,206 francs), will be discontinued from the end of September or October 1983, when the provisions regarding indexation established under collective agreements will be fully applied. It is only the base reference which is altered, taking into account the average monthly consumer price index of the last four months.
3. 235. The Government also points out that, under section 6 of Royal Order No. 180, for a period of two years there can be no increase in remuneration above indexation, except for cases of wage increases due to age or seniority or. those granted as a result of promotion or a change of duties. It states that this measure will be discontinued after 31 December 1984.
4. 236. Furthermore, the Government points out that Royal Order No. 180 must be set in the context of Royal Order No. 181 of 30 December 1982 setting up a wage moderation complementary employment fund and which anticipates that the benefits reaped from such moderation should allow, on the basis of collective agreements, an increase in recruitment in the order of 3 per cent and a reduction of working time of 5 per cent.
5. 237. According to the Government, these measures which were taken as a result of the economic, social and financial situation for the, purposes of creating a valid employment policy, apply both to the private and public sectors, are of a temporary and exceptional nature and are limited in scope to what is strictly necessary in order to achieve the objectives set.
6. 238. Furthermore, the Government points out that these measures' do not affect the systems established by regulations and collective agreements concerning wage increases due to age and seniority or to promotions and changes of category and that they do not undermine the guaranteed minimum monthly income which is not affected by the limited indexation, thus preserving the purchasing power of the least privileged.
7. 239. It also points out that the workers' organisations participate in the most important aspect of the wage moderation policy. They have negotiated and signed, either at the sectoral level or at the level of the undertaking, collective agreements concerning the use of the sums saved.
8. 240. The Government believes that the measures taken under sections 3 and 6 of Royal Order No. 180 do not violate Article 4 of Convention No. 98. Referring to the statement of the Committee on Freedom of Association that "If, as part of its stabilisation policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that it is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards", the Government believes that these measures are in line with the above-mentioned criteria.
9. 241. As regards section 4 of Royal Order No. 180 which stipulates that when indexation ceases to be applied to the part equivalent to ' the minimum wage (October 1983), the reference index shall not be based on the monthly consumer price index but on the arithmetic average of the consumer price index of the preceding four months, the Government explains that the objective is to iron out anarchic wage increases due to seasonal or accidental variations. This technique allows the adaptation of wages to remain intact and guarantees the purchasing power of workers. A slight delay in adapting wages may occur in only certain sectors as a result of the technique used.
10. 242. According to the Government, this measure falls within the competence of any government which may, by legal means, establish general rules applicable to the reference base of the consumer price index of the kingdom and does not call into question the principle of voluntary bargaining between the social partners which is part of these new rules.
11. 243. With reference to section 2, paragraph l, subparagraph 3, of Royal Order No. 179 which authorises the Government to grant exceptions to sections 19, 26 and 31 of the Act of 5 December 1968 concerning collective agreements and joint commissions, the Government points out that the aim of this Royal Order is to facilitate, on a voluntary basis, the creation of new jobs by a new arrangement of working time.
12. 244. The exceptions in question must ensure the necessary flexibility to the smooth running of the experiment which the rigour of some of the regulations and agreements currently in force does not provide.
13. 245. Furthermore, the Government points out that these exceptions are strictly limited to the requirements of the experiment concerning the arrangement of working time in the undertaking. They must in addition be the result of a consensus between the social partners on the basis of negotiations held prior to the signature of an agreement on the arrangement of working time, coupled with the recruitment of, additional workers and to which the Ministry of Employment and Labour is a party. It is therefore reasonable to suppose that workers will not sign an agreement which is less favourable than the regulations and collective agreements currently in force. As a consequence, the allegation of the complainant that the Minister of Employment and Labour may relieve employers of obligations resulting from collective agreements is devoid of any basis.
14. 246. Furthermore, the Government points out that not only does Royal Order No. 179 not call into question the principles of the Belgian Act dated 5 December 1968 concerning collective agreements and joint commissions, but actually extends the scope of negotiations between employers and workers to fields which in principle fall within the competence of the legislative body (for example, work performed beyond the statutory weekly or daily hours of work).
15. 247. The Government also points out that the system is an experimental one which will be applied for two years and the results of which will be examined within the framework of a more general appraisal which should result in a reform of labour regulations, in particular those regarding the length and form of work (shift work, etc.).
16. 248. According to the Government, this measure does not infringe Article 4 of Convention No. 98.
17. 249. As regards sections 1(4)(b) and 2, paragraph 2 of Royal Order No. 179, the Government points out that the agreement on the arrangement of working time is not a collective agreement in the sense of the Belgian Act dated 5 December 1968. It is rather an agreement sui generis concluded between three parties for the purpose of the reorganisation of working time coupled with the recruitment of additional workers.
18. 250. Furthermore, as mentioned above, Royal Order No. 179 does not call into question the principles of the Act of 5 December 1968.
19. 251. According to the Government, it is important to note that the representative organisations of workers are partners to the experiment, either as signatories to the agreement in undertakings in which there is a trade union delegation - it should be noted in this respect that in more than 70 per cent of the national joint commissions, agreements to fix the conditions for the establishment of a trade union delegation have been concluded and that some sectors have made provision for such delegations in undertakings with less than ten workers, hence the very large number of undertakings with a trade union delegation - or indirectly, since, in cases where there are no trade union delegations, representatives of the representative organisations of workers sit on the Commission on the arrangement of working time agreements which must, in particular, adopt unanimous decisions on all such proposed agreements.
20. 252. Since the undertaking provides the framework for the experiment in which workers are directly concerned, it is therefore the responsibility of the workers of an undertaking to appoint their representatives when trade union organisations do not exist. Furthermore, the Government adds that the absence of a trade union delegation cannot be ascribed to the Government.
21. 253. In the view of the Government, sections 1(4)(b) and 2, paragraph 2 of Royal Order No. 179 do not violate the provisions of Article 4 of Convention No.
22. 254. The Government adds that it does not see in what way the sections in question and the entire text of Royal Order No. 179 constitute an obstacle to or limitation on the right of workers to elect their representatives in full freedom and to organise their activities; according to the Government, Royal Order No. 179 is in no way related - directly or indirectly - to the subject matter of Article 3 of Convention No.

C. The Committee's conclusions

1. 255. The Committee notes that the present case calls into question the intervention of the Government in the sphere of wage fixation on the one hand and collective negotiations on the arrangement of working time on the other.
2. 256. The Committee notes that the measures which give rise to the complaint were adopted on the basis of a law of 1982 which attributes certain special powers to the King within the framework of a policy of economic and financial recovery, the reduction of public expenditure and the creation of jobs.
3. 257. It appears from an examination of the legislation related to the first allegation, in particular section 3 of Royal Order No. 180, that with effect from 1 January 1983 the indexation systems established by legislation, regulations or collective agreements will apply only to the part of the wage equivalent to the minimum wage.
4. 258. The Committee notes that under the terms of the final paragraph of section 3 of Royal Order No. 180 this measure is due to expire on a date which according to the Government, sometime during the months of September or October 1983. However, the measure in question is a prorogation of identical measures adopted by Royal Order No. 11 of February 1982.
5. 259. From the date on which this first measure expires, the indexation methods established by laws, regulations or collective agreements will once again be fully applied; however, in application of section 4 of Royal Order No. 180, they will no longer be based on the monthly consumer price index but rather on a monthly index equal to the arithmetical average of the consumer price index of the preceding four months.
6. 260. According to the complainant, this measure is imposed on the social partners for the future. For its part, the Government does not contradict this statement but points out that its power, as a Government, is to give it full competence to establish the reference standard used for the purposes of indexation, without this constituting an infringement of the principles of free bargaining established by Article 4 of Convention No.
7. 261. In addition to these measures concerning the indexation of wages and without prejudice to the increase in wages in line with the price index, there is the measure established under section 6 of Royal Order 180 which prohibits any increase in wages except increases due to age or seniority, promotion or change of duties during the period from 1 January 1983 to 31 December 1984.
8. 262. The Committee notes in this respect that the increases following from indexation (as established by the new system) as well as wage increases for reasons of seniority or age or as a result of normal promotion or individual change of category are not considered to be wage increases.
9. 263. It must be observed that this measure is the prorogation of wage moderation measures taken in February 1981 under the Act relating to wage moderation, and in February 1982 (Royal Order No. 11). However, immediately following the enactment of the Act of February 1981 the social partners had signed an inter-occupational collective agreement which produced the same results as the law. A system of wage moderation has therefore existed in Belgium since 1981 and will cease to be applied only in December 1984.
10. 264. The Committee notes the Government's assurance in its reply that the limitation of indexation only to the part of the wage equivalent to the guarantee monthly income will be discontinued from the end of September or October 1983, and that the prohibition of increases in remuneration above indexation will be lifted as of 31 December 1984.
11. 265. The Committee is aware that in a period of financial and economic crisis, it is the duty of a government to act and find solutions. It notes in particular in this case that the policy of wage moderation is part of the framework for a policy of job creation and reduction of working hours. However, as the Government itself points out, the Belgian system of indexation in the private sector has always been regulated by collective agreements. In this connection the Committee recalls that the intervention of a government in areas which traditionally have always been negotiated freely by the parties could call into question the principle of free collective bargaining recognised by Article 4 of Convention No. 98 if it is not accompanied by certain guarantees and in particular if its period of application is not limited in time.
12. 266. The Committee therefore hopes that this measure adopted under section 4 of Royal Order No. 180 and which is part of Chapter 2 entitled "Temporary modifications in the linking of wages to the consumer price index" will be applied as an exceptional measure for a reasonable period of time in line with the Committee's recommendations in previous cases.
13. 267. As regards the allegation concerning Royal Order No. 179 and the experiments on the arrangement of working time in undertakings for the purposes of the redistribution of available work, the Committee notes that section 2, paragraph l, subparagraph 3, authorises the Minister to grant employers temporary exceptions to the collective agreements signed in the joint bodies.
14. 268. The Committee considers that the negotiation on the arrangement of working time by the elected representatives of the workers is not an infringement of the right of workers to elect their representatives in full freedom (Article 3 of Convention No. 87) since, in the undertakings where a trade union delegation exists, it is the members of this delegation and the representative organisations which are empowered to bargain.
15. 269. On the other hand, the institution of a system of exceptions to collective agreements concluded by the organisations empowered to negotiate at the level of the joint body may, in the view of the Committee, weaken the negotiating power of these organisations, all the more so because under the terms of Section 17 of Royal Order No. 179 agreements may be concluded for an unlimited period of time after the duration of the experiment on the arrangement of working time. The Committee believes that these provisions could contribute to a major change in the collective bargaining system which has been established and accepted for a long time by the workers of Belgium since it would risk displacing the level of collective bargaining, at least as regards certain questions, away from the national joint bodies within the undertaking.