Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Working Conditions (Hotels and Restaurants) Convention, 1991 (No. 172) - Belgium (Ratification: 2017)

The Committee takes note of the observations of the General Labour Federation of Belgium (FGTB), of the Confederation of Christian Trade Unions (CSC), and of the Confederation of Liberal Trade Unions of Belgium (CGSLB), received on 30 August 2019, that relate to the issues examined in the present comment, as well as the Government’s reply to those observations, received on 29 October 2019.

Article 3(1) of the Convention. Adoption of a national policy. The Government indicates that the workers in the Horeca (hotels, restaurants, cafes) sector enjoy the same protection under employment law as all other workers. It also indicates that the sector can, when the law so allows, make specific provisions by means of sectoral collective agreements. The Committee notes, however, that the Government does not provide information on the adoption of a national policy aimed at improving the employment conditions of the workers concerned, as provided for by the Convention. In that connection, the Committee notes the report, cited by the workers’ organizations in their observations, of the Court of Auditors, transmitted to the House of Representatives of Belgium in 2019. According to that report, the Government launched the “Horeca plan” in 2015, with a view to improving the viability of the sector at the same time as combatting undeclared labour. The Horeca plan set out measures to reduce social contribution charges on employment: creating flexi-jobs, exempting overtime from these charges, and also expanding the existing system of occasional work. The Committee requests the Government to provide updated and detailed information on the measures taken, including as part of the Horeca plan, to develop and apply a national policy aimed at improving the employment conditions of workers in the Horeca sector. It also requests the Government to provide information on the impact of the measures taken in the Horeca sector, the major challenges and trends in the sector, as well as all specific measures taken to limit job losses and the deterioration of employment conditions in the sector.

Article 4(2) of the Convention. Reasonable normal hours of work and overtime provisions. The Government indicates that hours of work and overtime for all workers, including those in the Horeca sector, are regulated by the Labour Act of 16 March 1971 (sections 19 and 29). In that connection, the workers’ organizations observe that the adjustments made to the overtime regime in the Horeca sector, in particular the specific overtime hours, combined with voluntary overtime and the cash register system (a system certified by the Ministry of Finance, which has become compulsory for the vast majority of Horeca operators in Belgium), can have the effect of increasing the annual number of overtime hours to 503 hours, thus preventing the workers concerned from benefitting from the reasonable overtime provisions foreseen by the Convention. In its reply to the workers’ organizations, the Government indicates that the particular nature of the Horeca sector makes a degree of flexibility necessary, to cope with unexpected peaks of work. The Government indicates that the limits placed on recourse to overtime systems, in particular section 27(5) of the Labour Act of 16 March 1971, impose an absolute limit, known as the “European limit”, under which the various authorised exceptions are without prejudice to the provisions of EU Directive 2003/88, such that working hours, including overtime hours, cannot exceed 48 hours a week within a four-month period. In that connection, the Committee wishes to draw the Government’s attention to paragraph 145 of its General Survey on hours of work, in which it points out that, when deciding what should be considered as a “reasonable” limit on the number of additional hours in cases of exceptions, the public authority should make a thorough evaluation of the intensity of the respective work, its ability to produce physical or mental fatigue, and of the possible negative consequences from fatigue for the respective employee and the public at large. The Committee requests the Government to provide detailed information on the effective measures that have been adopted to ensure respect for the limits set on the organization of working time in the sector. It also requests the Government to supply information on the measures taken to guarantee that overtime hours done by workers in the sector are compensated by time off with pay, by a higher rate or rates of remuneration for the overtime worked or by a higher rate of remuneration, in accordance with national law and practice and after consultations between the employer and the workers concerned or their representative, as provided under paragraph 7(3) of the Working Conditions (Hotels and Restaurants) Recommendation, 1991 (No. 179).

Point V of the report form. Application in practice. The Committee notes the Government’s indications regarding monitoring of social legislation, that in 2018 the Federal Employment, Labour and Social Dialogue Service carried out 4,611 regulatory actions for a total amount of €9,279,786 and concerning 21,846 workers in the Horeca sector. It indicates further that 2,295 infringement reports (pro justitia) had been drawn up and submitted to the labour tribunal. These infringement reports concern 7,545 workers and amount to a total of €1,619,885. The Committee notes in that regard, according to the information provided by the Government, that the nature of the infringements in the sector principally concerned: protection of remuneration; public holidays; part-time work; labour regulations, social security (supplying information); respect for collective agreements; maintaining social documentation and undeclared workers. The Committee requests the Government to continue to provide updated and detailed information, especially statistics, on the application of the Convention in practice, disaggregated by sex, age and category of work in the sector, concerning the number of visits undertaken by the labour inspectors, the results of the visits and the measures taken, if any.

COVID-19 pandemic. In the context of the global COVID-19 epidemic, the Committee recalls the guidance provided by international labour standards. In that regard, the Committee wishes to draw the Government’s attention to the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), which provides guidelines for the formulation and implementation of effective responses to the profound socioeconomic repercussions of the pandemic. The Committee invites the Government to provide up-to-date information in its next report on the impact of the COVID-19 pandemic on the Horeca sector and on support measures and re-launching action taken to preserve the sector.