Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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

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 30 August 2019, and the Government’s reply in this regard, received on 29 October 2019. The Committee notes that the above-mentioned workers’ organizations express their concern about convictions and criminal proceedings brought against trade unionists for malicious obstruction of traffic (section 406 of the Criminal Code) in connection with a general strike and a day of trade union action. The workers’ organizations denounce that these procedures and decisions severely undermine the right to strike and to take collective action. The Committee requests the Government to provide its comments in this respect, including on the outcome of the criminal proceedings.

Article 3. Right of trade union organizations to organize their activities and formulate their programmes. Individual declaration of participation in a strike. The Committee notes the allegations of the FGTB, CSC and CGSLB concerning the Act of 29 November 2017 on the continuity of rail transport service in the event of a strike, which establishes a procedure of declaration of intent prior to strikes for each member of staff in an operational occupational category considered to be essential. Under the Act, each employee concerned must indicate whether or not they plan to strike at least 72 hours before the start of the day on which they are scheduled to work. An employee’s statement may be amended with a minimum of 48 hours’ notice if they decide to work, and a minimum of 72 hours’ notice if they decide to participate in the strike that day. The Committee notes the allegations by the trade union organizations that the individual notice period of 72 hours constitutes a restriction on the right to strike that exposes the employees concerned to pressure from their head of service and their employer and is likely to result in the creation of employee “blacklists”. They also criticize the 72-hour amendment period, which prevents employees from changing their mind at the last minute and deciding to participate in the strike.

The Committee also notes the allegations of the trade union organizations concerning the Act of 23 March 2019 on the organization of prison services and the prison staff regulations, which establish a similar procedure regarding the individual declaration of intent to strike. They note in this respect that staff members are required to indicate whether or not they plan to participate in the strike at least 72 hours before the start of a strike day. The statements may be amended with a minimum of 72 hours’ notice for each striking day if certain workers change their minds and wish to strike on the strike day.

The Committee notes the information provided by the Government in reply to these allegations. The Committee notes that, according to the Government, the Act of 29 November 2017 on the continuity of rail transport service does not restrict the right to strike and aims only to better ensure continuity of service. The Government indicates that no minimum service is established, and that no service will be provided if too great a number of employees choose to participate in the strike. Regarding possible pressure and potential “blacklists”, the Government emphasizes that employers already know which employees are striking, as they can observe it visually and have to take it into account for remuneration. It also argues that the notices are handled in a confidential manner and can even put additional pressure on employers during negotiations if, for example, a large number of employees declare their intention to participate in a strike. While recalling the importance of social dialogue and the procedures that precede the giving of notice, the Government also rejects the criticism regarding the length of the 72-hour notice period, noting that the Act only reproduces the notice period specified in the General Regulations on Trade Union Relations (RGRS 548) and that the unions have sufficient time to inform their members and convince them to participate in the strike. Regarding the Act of 23 March 2019 on prison services, the Committee notes the Government’s indication that the Act aims to achieve and give effect to minimum standards in terms of human rights for detainees, and not to restrict the right to strike of the employees in these services.

The Committee notes that the procedure on the individual declaration of intent to strike is established in comparable terms, on the one hand, in the context of rail transport, which the Committee considers not to be an essential service in the strict sense of the term but rather a service of critical importance for which the establishment of a minimum service can be justified, and, on the other, in the context of prison services, which the Committee considers to be essential services in the strict sense of the term. Since the two Acts in question concern sectors for which the Committee considers that the exercise of the right to strike may give rise to restrictions that comply with the Convention, the Committee considers that the declaration of intent to strike, reproducing the same 72-hour notice period specified in the General Regulations on Trade Union Relations, can be justified in order to ensure that a minimum level of activity in the services in question is maintained. However, the Committee emphasizes the importance of ensuring that the implementation of such procedures, which could be used to weaken the collective action of workers and their organizations, does not result in any kind of interference in the actions carried out by the trade union organizations or in any form of pressure on potential strikers. In view of the above, the Committee requests the Government to provide information on the application in practice of the relevant provisions of these Acts.

Prison services. Minimum service. The Committee notes the allegations by the trade union organizations concerning the Act of 23 March 2019 establishing a minimum service and the possibility of using a system of requisitioning staff in the case of a strike that lasts longer than two days. They indicate in particular that any disagreement 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, 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 notes the information provided by the Government in reply to these allegations. The Government indicates that the Act of 23 March 2019 uses the various recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and that the Council of State has concluded that the restriction of the right to strike was proportional and fitting in view of the essential services that must be guaranteed to detainees. The Council also emphasized that the trade unions were involved throughout the setting up of this minimum service. With particular regard to section 19 of the Act, the Government states that the trade union organizations failed to indicate that, when the minister determines the services to be provided and the measures to be taken, he does so after consulting the competent advisory committee. In the Government’s view, then, another opportunity for dialogue is provided for at the level of the High Advisory Committee. If no opinion in favour is issued by this Committee, the minister may then decide to amend the operational plan or continue without amendments, in accordance with the rules set out in the trade union constitution. This would require a new round of dialogue and consultations with the bodies and committees set up for this purpose. However, the Government recognizes that no provision has been made so far for an independent body to intervene at this stage of dialogue. While noting the consultation procedures established by law to ensure the maintenance of a minimum service, as referred to by the Government, the Committee nevertheless wishes to recall that it considers that any disagreement on minimum services should be resolved not by the government authorities but by a joint or independent body which has the confidence of the parties, responsible for examining quickly and without formalities the difficulties raised, and empowered to issue enforceable decisions (see the 2012 General Survey on the fundamental Conventions, paragraph 138). In view of the above, the Committee requests the Government to continue its efforts to establish an independent body for determining the minimum services to be provided in prison services in the event that the parties do not reach an agreement.

Picketing. The Committee notes the Government’s indication that, further to the information provided by the Government on current jurisprudence, in December 2018 the European Committee of Social Rights considered that the situation of Belgium is currently in compliance with the European Social Charter and decided to end its examination of the follow-up to the decision.