Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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 25 August 2021, as well as the Government’s reply of 29 October 2021, which deal with issues examined in the context of the present comment. The Commission also takes note of the additional observations from the above-mentioned organizations received on 17 November 2021.

Article 3 of the Convention. Right of trade union organizations to organize their activities and formulate their programmes. Malicious obstruction of traffic (section 406 of the Criminal Code). In its previous comments, the Committee asked the Government to provide information on the application of section 406 of the Criminal Code and on the outcome of the criminal proceedings brought. The Committee notes that according to the Government there is consistent jurisprudence from which it can be inferred that when certain acts can be qualified as criminal offences detrimental to the security and freedom of all citizens (here, the criminalization of malicious obstruction of traffic), these cannot be purely and simply set aside for certain fundamental rights, but that this is however without prejudice to freedom of association. The Government emphasizes that the fundamental principle underlying section 406 of the Criminal Code is not detrimental to the right to strike or the free exercise thereof: the section is not aimed at these actions, but rather at all instances where road barrages are erected with malicious intent, regardless of the underlying motive. The Committee notes that the Government refers to the status of two cases in which the public prosecutor has brought criminal proceedings under section 406 of the Criminal Code in respect of trade union representatives who erected a road barrage in the context of strike action. The first case concerns acts committed during an inter-professional strike on 24 June 2016 against government policy in respect of pension measures; on this occasion, certain access routes to the Port of Antwerp were closed off, with a view to causing economic damage and encouraging the enterprises affected to put pressure on the Government. Regarding this case, the Government indicates that the Court judged that the deliberate act of obstructing traffic was sufficient to demonstrate the essential maliciousness of the action. Consequently, it is not necessary “that the perpetrator know, or ought to have known, that the act of obstructing the traffic could become dangerous”. The Government emphasizes that according to the Court: (i) “the mere fact that an offence is committed in the context of a strike or a demonstration does not remove the moral element of the offence, regardless of the motives for the action. Thus, the fact that an obstruction to traffic should be organized to support trade union demands does not necessarily prevent the act of obstructing traffic from being qualified as malicious within the meaning of section 406, first paragraph, of the Criminal Code”; and (ii) “under Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the right to strike or the right to demonstrate are not absolute rights, and their exercise may be subject to restrictions, provided that the latter answer effectively to the general interest and cannot be considered to be excessive or intolerable actions detrimental to the very basis of these protective rights; the judge rules definitively on this matter, on the basis of the facts before him.”

The second case concerns acts committed during a day of strike action on 19 October 2015. The Government reports that about 300 demonstrators blocked a motorway viaduct in the Province of Liège, with serious consequences for public goods and for users (deterioration of the road surface and traffic jams which, in particular, prevented a surgeon from operating on a hospital patient who subsequently died). The Committee notes that in a judgment of 23 November 2020, the Liège Criminal Court convicted 17 trade unionists of malicious obstruction of the traffic (15 days’ imprisonment (suspended) and a fine of 300 Euros for the unionists and one month’s imprisonment (suspended) and a fine of 600 Euros for the union leaders) and that the union has appealed the decision. The Committee notes that, according to the FGTB, the CSC and the CGSLB, the approach adopted by the Criminal Court undermined the right to strike, since the mere fact of being present at one moment or another at a barrier point criminalizes the participants (the defendants had already asserted that they had gathered at a barrier that was already in place and that the action had been disturbed by rioters who were not connected with the union). The Committee notes that according to the trade union organizations the sentences pronounced will have serious consequences: they risk intimidating trade unions and discouraging trade union action and, on a personal level, they entail the establishment of a criminal record likely to have repercussions in terms of access to employment. The organizations also note that they have given rise to a press campaign assimilating trade unionists to thugs or common criminals. The Committee notes the information according to which, on 19 October 2021, the Liège Court of Appeal upheld the verdict issued by the Criminal Court, maintaining the prison sentences and imposing heavier fines. The Court of Appeal deemed the defendants guilty of deliberate obstruction of traffic and that the right to strike could not be used in defence. The Committee notes that the FGTB envisages appealing to the Court of Cassation.

The Committee notes the information provided by the Government and by the trade union organizations. It requests the Government to continue to provide information on the application of section 406 of the Criminal Code and on the outcomes of criminal prosecutions engaged, in particular the appeal before the Court of Cassation against the decision of the Liège Court of Appeal of 19 October 2021.

Individual declaration of participation in a strike. In its previous comments, the Committee requested the Government to provide information on the application in practice of: (i) 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 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 (RGRS)); and (ii) the Act of 23 March 2019 on the organization of prison services and the prison staff regulations, which allows for a similar procedure. 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 fundamental 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 noted that the Constitutional Court had rejected the appeal for annulment filed against the Act of 29 November 2017 in a ruling of 14 May 2020, considering that since a minimum of eight working days’ notice of a strike is required, staff members required to submit a prior declaration have sufficient time to take a decision on their participation in the strike, 72 hours ahead of it, and that such a procedure did not therefore entail disproportionate interference with the rights of the workers concerned.

The Committee notes that the Government recalls that the Constitutional Court, in its ruling of 14 May 2020 deemed it disproportionate, in light of the objectives pursued, to consider as a breach of discipline the fact that an agent fails to declare his intention not to participate in the strike and, therefore, to work. Regarding the practical application of the Act, the Committee notes the circular provided by the Government regarding continuity of the rail transport service, which applies to strikes initiated under the prior notice and consultation procedure for social conflicts, in conformity with the Trade Union Rules for the Belgian Railways (RGPS Pamphlet 548). By virtue of this legal framework, staff members belonging to operational professional categories considered to be essential by the management committees of Infrabel and the SNCB, whose presence is foreseen for the day(s) of the envisaged strike, are invited to make known their intention to participate or not in the strike, by means of a traceable procedure previously installed by the enterprises and made public through all internal channels of communication to the staff members concerned.

With regard to the Act of 23 March 2019 on the organization of prison services and the prison staff regulations, the Committee notes that the Government recalls that the Act sought and found a balance between guaranteeing the right to strike, on the one hand, and the organization of effective minimum services for the detainees, on the other, and for this reason, declarations of intention, treated confidentially, are required so as to be able to manage the strike in the prison and avoid it preventing provision of minimum services to detainees. The Committee notes the example of instructions provided to prisons in case of strike notice, which include checklists allowing the prisons to ascertain that the procedures are followed correctly. The Committee takes due note of all information provided by the Government.

Prison services. Resolution of conflicts. In its previous comments, the Committee noted the allegations by the above-mentioned 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 of more than two days. The organizations indicated in particular that any dispute 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 Government’s observation that sections 17 and 18 of the Act of 23 March 2019 set out the minimum service requirements for detainees and determine the persons whose access to the prison must be guaranteed throughout the duration of the strike, and that there is therefore no consultation on these points, already established by the legislator; however, to assure these services, the staff must be sufficient in number. This information is provided in the tables or service plans for each prison. The Government recalls in this regard that since the legislator wished to resolve matters insofar as possible by common accord, the “post planning” by prison was initially entrusted to local social consultations (that is, grass-roots advisory committees). If no agreement is reached at local level, another consultation is foreseen at a higher level (in the higher advisory committee). If no agreement is reached at that level either, the minister decides. The Committee also notes the Government’s indication, in respect of the consultation and decision process for the official tables, that: “finally, when no agreement was forthcoming through social dialogue, the memorandum with the plans for each prison was approved by the minister.” Noting the information provided by the Government to guarantee a minimum service, the Committee requests the Government to provide additional information on the compensatory guarantees or resolution mechanisms applicable in disputes in the prison services.