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

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

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 1 October and 10 November 2020, which address the issues examined within the framework of the present Convention. The workers’ organizations also reiterate their concern regarding convictions and criminal proceedings brought against trade unionists for malicious obstruction of traffic (section 406 of the Criminal Code), which undermine the right to strike and to take collective action. The Committee requests the Government to provide its comments on the application of this provision and to provide information on the outcome of the criminal proceedings brought.

Article 3 of the Convention. Right of trade union organizations to organize their activities and formulate their programmes. Individual declaration of participation in a strike. In its previous comments, the Committee noted the observations of the FGTB, CSC and CGSLB regarding the Act of 29 November 2017 on the continuity of rail transport service in the event of a strike, which required each member of staff in an operational occupational category considered to be essential to declare his or her intention to participate in a strike by a determined deadline (72 hours’ notice, in line with the General Regulations on Trade Union Relations). The Committee also noted the above-mentioned 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 referred to the same matter. The Committee noted that the procedure regarding the individual declaration of intent to strike was 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. The Committee considered that if the declaration of intent to strike could be justified in order to ensure that a minimum level of activity in the services in question is maintained, it is important to ensure 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. The Committee notes the Government’s indication that the appeal for annulment filed against the Act of 29 November 2017 was generally rejected by the Constitutional Court in its ruling of 14 May 2020. The Committee notes that, according to the Court, since a minimum of eight working days' notice of a strike is required, staff members required to submit prior declaration have sufficient time to take a decision on their participation in the strike, 72 hours ahead of it. The Court considered that "the minimum strike notice period of eight working days and the obligation of prior declaration incumbent on certain agents do not therefore entail disproportionate interference with the rights of the workers concerned and, in particular, do not impede social dialogue and collective consultation and do not affect the freedom of association and the right to collective bargaining in their substance". Taking due note of these elements communicated by the Government, the Committee requests it to continue providing information on the application in practice of the relevant provisions of the above-mentioned Acts, including possible interference with the ability of workers or worker organisations to participate in activities protected under the Convention.

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.

[The Government is asked to reply in full to the present comments in 2021.]