Rapport définitif - Rapport No. 158, Novembre 1976

1. 44. The Committee last examined this case in February 1974, when it submitted a final report which is contained in paragraphs 7 to 44 of its 143rd Report. This report was approved by the Governing Body at its 193rd Session (May-June 1974). The complainants sent a further communication dated 20 June 1975, on which the Government furnished its observations by a communication dated 14 November 1975. At its February 1976 Session the Committee decided to adjourn its examination of this case.
2. 45. Belgium has ratified both 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. A. The complainants' allegations

• Conclusions reached by the Committee in its 143rd Report
  46. 46 The complainants alleged that the Government, in submitting a Bill on labour relations in the public service, intended to grant a monopoly to the "political trade unions" in this sector. According to the complainants this Bill was unacceptable in two ways.
  47. 47 First, a union would not be entitled to a seat on the general public service Committees - negotiating bodies provided for in the Bill - unless it was affiliated to a trade union body represented on the National Labour Council. The complainants went on to point out that the preamble to the Bill recognised that this Council was competent only for the private sector, yet the Government made the right of representation in the public sector dependent upon membership of this same body, whereas such membership, in the complainants' opinion, would seem rather to be a reason for exclusion. The complainants added that only the three trade unions linked with the "traditional" parties (Socialist, Christian-Social and Liberal) were represented on the National Labour Council According to the complainants the position was especially serious in the public sector, where the Bill discriminated between the unions just mentioned - associated with the parties that generally constituted the Government and local authorities (i.e. the employers of public servants) - and other trade union organisations, in particular the Association of Independent Trade Unions of Belgium, which, at every trade union election in the public sector, had obtained enough votes to be represented at the national level. As the complainants saw it, the effect of the Bill was to exclude the Association from bargaining carried on in the General Committee, on which it had sat up to that time, having been regularly elected by the staff.
  48. 48 The Bill also provided for the representative character of trade unions to be assessed on the basis of their paid-up membership. The complainants objected to this provision on the ground, firstly, that because of the increasingly political nature of trade union activities a number of public servants had been forced to join political unions as well as their own unions in order to obtain, in particular, the promotion to which they were entitled; and, secondly, that workers were entitled to join unions anonymously so as to avoid victimisation by their employer. The complainants added that in half a century of existence they had known of only one instance where an employer had tried to obtain a list of members that was during the Occupation and all self-respecting trade union organisations had refused to comply. As the complainants saw it, the only persons qualified to decide whether a trade union was representative were the workers in the undertaking or sector concerned, even if not themselves members of a union, and it was only by trade union elections that the representative character of workers' organisations could be established.
  49. 49 In a communication dated 14 November 1973, the Government analysed the terms of the Bill and of the amendments it had put forward. As stated in the preamble, this piece of legislation was intended to lay the foundations of a new system of employment relations for public servants. While, the preamble stated, freedom of association must be fully safeguarded, it was necessary to regulate and organise the relations between the political or administrative authorities and "responsible spokesmen" for their employees. To this end, the Bill provided for three series of measures:
      • (a) the "approval" of trade union organisations - a system for which was already in operation - was intended to oblige trade unions wishing to exercise certain prerogatives to make themselves known by supplying a copy of their rules and a list of their officers; no new administrative procedures were required to secure approval;
      • (b) fresh arrangements were called for, on the other hand, in the case of bargaining and consultation. Bargaining demanded a thorough discussion of the issues at stake, so that allowance could be made for different views. However, if the negotiations were not to be too unwieldy, they must be limited to essentials, and provision had therefore been made for another procedure whereby employees could be given a say in the preparation of the organisational measures required for administrative purposes: consultation machinery;
      • (c) the sections dealing with the representative character of a trade union (see paragraph 51 below) were based on the provisions of the Act of 5 December 1968 respecting collective labour agreements and joint Committees (even though that Act had been designed first and foremost for the private sector), for the purposes of which the following were deemed to be representative: (1) national inter-occupational workers' organisations represented on the Central Economic Council and the National Labour Council (such organisations must furthermore have at least 50,000 members); (2) occupational organisations affiliated to, or forming part of, an inter-occupational organisation of the kind just mentioned.
  50. 50 The Bill consisted essentially of provisions governing bargaining and consultation procedures. It provided mainly for the setting up of various Committees to operate the bargaining procedure. Three general Committees were to be set up: the National Public Services Committee, the Provincial and Local Public Services Committee and the Joint Committee for the public service as a whole, to deal with matters of concern to national, regional and local public service employees. In addition, sectoral or special Committees were to be set up for government departments and other state services and public bodies, and Committees for provincial and local administrations, establishments and services. Each of these special Committees would deal with matters of concern to the staff of the service or services for which it had been set up.
  51. 51 The Bill laid down that only representative trade union organisations might be represented on the bargaining Committees. A trade union organisation was to be deemed representative for the purpose of entitlement to representation on the Joint Committee for the public service as a whole if it: (1) was nation-wide; (2) defended the interests of all classes of public service employees; and (3) was affiliated to a trade union organisation represented on the National Labour Council. Besides having to meet these three conditions, an organisation would have to have a paid-up membership of at least 10 per cent of the staff in the relevant public services if it was to be represented on the National Public Services Committee or the Provincial and Local Public Services Committee. The following were to be considered representative for the purpose of entitlement to seats on the special national Committees: (1) any organisation with a seat on the general National Public Services Committee; (2) the approved trade union organisation which at one and the same time defended the interests of all classes of employees in the services for which the Committee catered, was affiliated to a national trade union Confederation or federation and had the most paid-up members of all the trade union organisations other than those mentioned under (1) whose paid-up members employed in the relevant public services represented at least 10 per cent of the total so employed. The rules respecting representation on the special regional and local Committees were very similar.
  52. 52 The Bill also dealt with the rights of approved trade union organisations, and thus also covered organisations not entitled to sit on the negotiating bodies. The Bill provided that trade unions would be approved, except in cases to be determined by the Crown, once they had made themselves known to the competent authority by supplying a copy of the rules and a list of their officers. Approved trade union organisations would be allowed: (1) to approach the authorities in the collective interest of the staff they represented or in the interest of an individual public servant; (2) to assist, at his request, a public servant called upon to account for his conduct before an administrative authority; (3) to affix notices in working premises; (4) to receive general personnel management literature about the staff it represented.
  53. 53 In its comments on the Bill, the Government stated that the general bargaining Committee for all public services was to replace the National Labour Council in all public service matters. It emphasised that the representative character of trade unions was determined by objective criteria laid down in advance, in conformity with the principles expressed by the Committee, and explained that the Bill embodied criteria of two kinds for the assessment of representative character: the "external" and the "internal"
      • (a) the external criteria took into account, first of all, the way in which the trade union movement had freely organised itself; secondly, they reflected a desire that high-level negotiations should take place only with those organisations which belonged to the main stream of the trade union movement. This state of affairs already existed in the National Labour Council and the Bill merely extended it to the public sector;
      • (b) as regards the internal criteria, the Government stated that they had been relaxed in the case of the special Committees; so as not to incur the reproach of wishing to set up a discriminatory system, it had accepted the condition of 10 per cent of the staff in the service concerned, whereas the Bill in its original form had required 15 per cent.
  54. 54 As concerns the verification as to whether the membership of a union reached the required percentage, the Government added that it had submitted an amendment to the Bill entitled "supervisory arrangements". A three-member board appointed by the Crown and presided over by a judge would verify every six years whether the trade union organisations represented or applying to be represented on the negotiating Committees met the conditions prescribed by law. The members of the board and their staff would be bound to secrecy. Moreover, a trade union organisation found by the board net to meet the requirements of the law would be able to put its case again before the six years were up, should it feel that it then qualified. If, on reconsideration, it was deemed representative, it could at once take its seat on the Committees concerned.
  55. 55 The Government pointed out that the Council of State had acknowledged that it was reasonable to require a trade union organisation wishing to be represented on a general Committee to belong to the National Labour Council. The requirement that an organisation should be inter-occupational was designed to ensure that its members did not merely seek to further their own interests with no concern for those of other public employees. The Council of State had taken the view that this "comprehensive" conception of representativeness did not infringe freedom of association as it did not compel public servants to join unions other than those of their own choosing, and more especially political unions. Public servants, continued the Government, were in no way obliged to join a union, still less any particular union. The criteria adopted represented the outcome of a slow process of development in Belgian labour law. Furthermore, the arrangements made for inquiries to ascertain representativeness ensured the requisite degree of secrecy and fairness. In connection with the claim that favouritism was shown towards the political unions, the Government pointed out that trade union organisations were not prohibited from having their own political views, or even from forming connections with political parties.
  56. 56 The Government added that while the Bill restricted membership of the negotiating Committees, it did at the same time deal with the procedure for the approval of trade union organisations and with the prerogatives granted to them once this formality had been complied with. Through the approval procedure the Bill provided a means of enabling non-representative trade union organisations to continue to further and defend their members' interests even though not eligible for representation on negotiating and consultation Committees. Finally, the Government stated that only when a trade union organisation was no longer able to further and defend its members' interests was it entitled to complain of a breach of freedom of association. In view of the arrangements for approval, the Bill did not jeopardise this right.
  57. 57 The Committee, in February 1974, had begun by placing the problems posed within the context of the questions of trade union representativeness with which it had had to deal in the past. In such instances, the Committee had conceded that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness, but it had taken the view that the intervention of the public authorities with regard to advantages should not be of such a nature as to influence unduly the choice of the workers in respect of the organisation to which they wished to belong. The Committee has also taken the view that the fact that a trade union organisation was debarred from membership of joint Committees did not necessarily imply infringement of the trade union rights of that organisation; but for there to be no infringement, two conditions must be met: first, the reason for which a union was debarred from participation in a joint Committee must lie in its non-representative character, determined by objective criteria; second, in spite of such non-participation, the other rights which it enjoyed and the activities it could undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87.2
  58. 58 In the case under consideration, and as regards the allegations relating to the external conditions with respect to representativeness, the Committee observed that the Bill, although setting up general Committees to deal with the public sector only, specified, as a condition for representation on them, that an organisation must be affiliated to an organisation represented on the National Labour Council, a body which (should the Bill become law) would, it seemed, be competent to deal with the private sector only. Such a system, in the Committee's opinion, might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be excluded from the general negotiating Committees on the ground that they were not affiliated to a trade union organisation represented on the National Labour Council - a body which would not, however, be competent with respect to the public sector.
  59. 59 As regards the allegations relating to the counting of paid-up members, the Committee observed that although in general a vote might be a desirable means of ascertaining how representative trade union organisations were, the inquiries provided for in the Bill seemed to offer genuine guarantees of secrecy and impartiality. It also observed that these provisions ensured that decisions by the board would be subject to review at sufficiently frequent intervals, since a trade union organisation would be able to appeal to it whenever it considered that it met the conditions governing representative character. Furthermore, as regards the right of public employees to join organisations of their choice and to be protected against victimisation, the Committee pointed out that the complainants had themselves acknowledged that Belgian employers refrained from demanding lists of trade union members.
  60. 60 In these circumstances the Committee recommended the Governing Body:
      • (a) with regard to the allegations relating to the external criteria of representative character which must be met before an organisation was given a seat on the general negotiating Committees, to draw the Government's attention to the considerations set forth in paragraph 58 above;
      • (b) with regard to the allegations relating to the counting of raid-up members, to decide, for the reasons given in paragraph 59 above, that this aspect of the case did not call for further examination on its part.
  61. Latest Developments
  61. 61 The Association of Independent Trade Unions of Belgium announced in a letter dated 20 June 1975 that the Bill had been adopted by Parliament without modification and had become law on 19 December 1974. It asserted that compliance with the Committee's recommendations implied deletion of section 7, subsection 1(3), of the Act (need to be affiliated to a trade union organisation represented on the Labour Council in order to sit on the Joint Committee for the public service as a whole, and hence on the other two general Committees as well), and repeated that this Act granted a monopoly to the three trade unions linked with the Socialist, Christian-Social and Liberal parties and was designed to exclude all other unions from normal union activity. The complainants stated that the Act would be implemented through Royal decrees, and recalled their objections to the system for the counting of members, which it their opinion did not provide the desired safeguards with regard to secrecy and impartiality because, they alleged, magistrates (called upon to play a part in this procedure) were appointed on the basis of their membership of one of these political parties.
      • (a) Preliminary Remarks
  62. 62 In its reply of 14 November 1975, the Government began by querying the receivability of the complaint it stated that any appraisal of the new Act must be regarded as premature, since the measures by which it was to be implemented, particularly as concerns the approval of trade unions, were not yet known; under the terms of section 23 of the Act, its coming into force and the implementation of its various provisions would be effected by the Crown, on such dates and in accordance with such procedure as the Crown might decide. The Government added that it was impossible, on the basis of the provisions of the Act alone, to deduce what would be the terms of the comprehensive and detailed system it was planning to introduce. The Government also objected to the extremely cursory nature of the new communication from the complainants.
  63. 63 The Government further expressed the opinion that the matters on which the Committee and the Governing Body had already reached conclusions were supposed to be settled and could not be re-examined, mentioning in this connection the allegations relating to the counting of paid-up members as well as those relating to the institution of a so-called trade union monopoly and the favouritism allegedly shown towards political unions.
  64. 64 The Committee considers that the new communication from the complainants contains specific allegations of infringements of trade union rights - allegations they had already formulated in detail in their original complaint. The Committee is also of the opinion that this communication is not premature since it is concerned mainly with a question of principle on which the Committee has already expressed its views, making certain recommendations which were net taken into account when the Bill was discussed in the Belgian Parliament. The Committee has, moreover, always taken the view that it could not reopen a case which it had already examined in substance and on which it had submitted final recommendations to the Governing Body unless new evidence was adduced and brought to its notice. It is of the opinion that the fact that the Bill in question has become law constitutes new evidence which justifies the reopening of the case.
      • (b) Analysis of the Government's Reply to the Complainants' Latest Allegations
  65. 65 In its very detailed reply, accompanied by numerous enclosures, the Government begins by recapitulating the history of the case and mentions the discussions to which it gave rise in the Belgian Parliament. It goes on to say that the purpose of the new Act is to lay the foundations for a new system of employment relations in the public sector as the Act of 5 December 1968, already cited, did for the private sector; it merely establishes a general legislative framework in this connection and leaves it to the executive power to work out a comprehensive and detailed system, covering also the process for the approval of trade unions, and to determine the categories of public servants to whom it will apply (see also paragraph 62 above).
  66. 66 The Government again points out that sections 7 and 8 of the Act of 1974, which refer to the conditions for determining the representativeness of a trade union, establish objective criteria laid down in advance, applicable to all trade unions without distinction. These criteria, of which there are many, constitute the "external" or "internal" conditions for determining representativeness, except in the case of representation on the Joint Committee for the public service as a whole (where only the former are taken into account). The existence of "internal" conditions in respect of representativeness constitutes a difference from the system instituted for the private sector by the aforementioned Act of 5 December 1968. As for the "external" conditions, the Government states that they are explained by the existence in Belgium of a large trade union movement, open to all trends but dominated by those in the majority. The obligation to be affiliated to an organisation represented on the National Labour Council, embodied in various provisions of Belgian law since 1957, was introduced, adds the Government, primarily for the following reasons: first, in order to avoid giving priority to a purely administrative type of trade unionism which might tend to lead a separate existence from the genuine trade union movement, or continue to suffer from the effects of a certain corporatist tendency and, secondly, in order that negotiations might take place only with trade union organisations which, while not abandoning their action to further the interests of their own members, realise, since they belong to the main stream of the trade union movement, that collective bargaining will come around sooner or later to the general question of the distribution of the national income among all workers, whether in the private or the public sector. It is a question, according to the Government, of respect for and solidarity with all employed persons.
  67. 67 The conclusions in the Committee's 143rd Report, continues the Government, have been made public and discussed in Parliament. The Government had prepared an analysis of these conclusions in which it stated that it was unable to agree with them in their entirety. The Government points out, in particular, that the National Labour Council has not lost all its competence in respect of the public sector, but continues to be competent to deal with all matters affecting both the public and private sectors. The only question to be answered, adds the Government, is why the requirement of affiliation to an organisation represented on the National Labour Council was added to the Act of 1974. In this connection the Government repeats that it considers it both wise and apposite to be able to deal, at the highest levels of negotiation, with branches of the main trade union movement.
  68. 68 The Government also recalls the existence, alongside the system to which reference is made above, of a system for the approval of trade unions which is still awaiting measures to bring it into operation such approval is not dependent upon any of the conditions of representativeness mentioned above, but is granted as soon as a trade union itself furnishes evidence that it is continuously and usefully in action, Approval enables a union to exercise freely the fundamental trade union prerogatives and, in the opinion of the Government, ensures in itself full respect for freedom of association. The Government states that it will take special pains to ensure that all approved unions have access to all the authorities involved in any capacity whatsoever in the determination of the general conditions of work of the employees concerned. The prerogatives granted to certain unions in respect of collective bargaining and consultation (procedures which are moreover compulsory for the public authorities) do not, in the opinion of the Government, prevent approved unions from exercising the other prerogatives provided for in section 16 of the Act, including the right to approach the authorities in the collective interest of the staff or in the interest of an individual public servant.
  69. 69 After summing up the arguments it has put forward, the Government states that, in its view, the requirement that a union must be affiliated to a trade union organisation represented on the National Labour Council (section 7, subsection 1(3)) must be maintained, bearing in mind the comprehensive system to be introduced when measures are taken to administer the Act. In the case of collective bargaining or even of consultation of trade unions, it adds, a selection has to be made when the number of approved trade unions is as large as it is in the Belgian public sector, and it is compulsory to have recourse to one or other of these procedures before important administrative decisions are taken. The Government points out that in other countries, too, the so-called independent trade unions complain that they are unable to participate in collective bargaining because they are insufficiently representative, and they are sometimes even refused any form of recognition of such representativeness as they may have.

B. B. The Committee's conclusions

• Conclusions of the Committee
  70. 70 The complaint and the information subsequently supplied by the complainants are concerned essentially with two points: the counting of a union's paid-up members to ascertain its numerical importance, and the requirement that a union must be affiliated to an organisation represented on the National Labour Council in order to be entitled to a seat on the general negotiating Committees. As stated in paragraph 60 above, the Committee already recommended to the Governing Body, in February 1974, to decide that the first of these points did not call for further examination, and no new evidence has been adduced which might lead the Committee to modify that conclusion. As regards the second point, the Committee made certain comments - recalled in paragraph 58 above - on the external criteria of representative character which must be met in order to obtain a seat on these general Committees. These comments referred to a Bill which has now become the Act of 19 December 1974, without the relevant provisions having been amended in the meantime.
  71. 71 It should be recalled that the regulations governing staff associations, which the Act of 1974 is intended to replace provided, in particular - in addition to a system for the granting of official recognition similar in many respects to the new approval procedure - for the setting up of a general trade union consultative Committee consisting of a chairman, members appointed by the public authorities and members selected by the staff associations on the basis of the results of elections within these associations. This body was essentially advisory in character. The complainant organisation had a seat on this Committee, to which it had been elected by the staff.
  72. 72 The new Act replaces this consultation machinery by bar-, gaining and consultation procedures in which, however, only representative trade union organisations may participate. In the case of the first of these procedures, a union can sit on the general negotiating Committees only if it is affiliated to an organisation represented on the National Labour Council in this connection, an Act of 29 May 1952 provides that the members of this Council are to include representatives of the representative organisations of workers, appointed by the Crown from among the candidates nominated by the inter-occupational organisations federated at the national level. The organisations so designated are the Confederation of Christian Trade Unions, the General Federation of Labour of Belgium and the General Confederation of Liberal Trade Unions of Belgium. The complainant organisation, being affiliated to none of these Confederations, is not entitled to sit on the general negotiating Committees.
  73. 73 The Committee notes the further observations made by the Government in this case. It notes, in particular, that the requirement that a union must be affiliated to a trade union organisation represented on the National Labour Council to be entitled to seats on the general bargaining Committees is intended to prevent precedence being given to organisations of public service employees which might tend to concern themselves purely with the interests of their own members, without taking into account those of employees as a whole, and the solidarity to be shown towards the latter. The Committee further notes that in view of the multiplicity of unions in the Belgian public sector it was necessary for a selection to be made for the purposes of bargaining and consultation.
  74. 74 The Committee recognises the importance of the problems referred to in the preceding paragraph and the advantage there may be in associating the main trends in the Belgian trade union movement in the bargaining procedures described above. It observes, however, that the new Act could have the effect of depriving a union which is not affiliated to an organisation reflecting one of these trends, but which emerges as the most representative organisation of public servants, of the seat on the general negotiating Committees to which it should logically be entitled in view of the support it receives from a majority of the workers directly concerned.