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

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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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 31 August 2023, and as well as the Government’s reply, most of which relate to matters examined in the present comment.

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 noted that, according to the above-mentioned trade union organizations, the offence of malicious obstruction of traffic provided for in section 406 of the Criminal Code is detrimental to the exercise of the right to strike, while the Government observed that the section is not aimed at the exercise of this right, but rather at all instances where road barrages are erected with malicious intent, regardless of the underlying motive. In the two cases referred to by the Government (the Port of Antwerp case and the Cheratte viaduct case), the courts considered that the fact that an obstruction to traffic was organized to support trade union demands did not necessarily prevent the act of obstructing traffic from being qualified as malicious within the meaning of section 406 of the Criminal Code. In the Cheratte viaduct case, the Committee noted that on 19 October 2021, the Liège Court of Appeal upheld the verdict issued by the Criminal Court, maintaining the prison sentences, deeming that the defendants were guilty of deliberate obstruction of traffic and that the right to strike could not be used in defence. Noting that the FGTB envisaged appealing before the Court of Cassation against the decision of the Liège Court of Appeal of 19 October 2021, the Committee requested the Government to provide information on the application of section 406 and on the outcome of the appeal before the Court of Cassation. The Committee notes that, in a ruling dated 23 March 2022, the Court of Cassation dismissed the appeal against the ruling of the Liège Court of Appeal, confirming that the criminal penalty was not disproportionate in respect of freedom of expression and the right of peaceful assembly, as the right to strike could be exercised without undermining freedom of movement. The trade union organizations also point out that the Court of Cassation does not condemn the facts that: (i) the Court of Appeal did not examine the necessity of the criminal penalty, including with regard to passive participation in the blockages; and (ii) heavier penalties are imposed when the person concerned holds responsibilities in the trade union. Lastly, the Committee notes that the trade union leaders and activists convicted on 19 October 2021 by the Liège Court of Appeal lodged an application with the European Court of Human Rights on 23 July 2022.

With regard to legislation, the Committee notes the information provided by the trade union organizations and the Government indicating that a draft reform of the Criminal Code is currently under discussion at the government level. As to section 406, they indicate that regarding the moral element, it is proposed to replace the word “maliciously” by the words “with intent to harm”. These words indicate that the offence should be committed with “the intention to do harm, to undermine the rights of society or individuals or to harm others”. Moreover, the draft sections are supplemented by a new provision establishing a clause for the protection of fundamental rights and freedoms. According to the Government, it was important to make explicit provision for the fact that people exercising their fundamental rights, such as the right to strike, freedom of assembly, freedom of association, and so forth, cannot be prosecuted on the basis of the traffic obstruction provisions. The trade union organizations and the Government nevertheless observe that the rights to which this clause refers are not absolute, and may be subject to restrictions, justified by the need to ensure respect for other competing fundamental rights. The Committee requests the Government to provide information on any developments concerning the ongoing reform of the Criminal Code, and in particular the amendment of section 406.

Prison services. Resolution of disputes. In its previous comments, the Committee noted the allegations by the above-mentioned trade union organizations, according to which 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 of 23 March 2019 on the organization of prison services and prison staff, 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 noted the Government’s observation that the minister intervened only as a last resort – that is, in the absence of an agreement arising from the various stages of consultation and dialogue. Noting the information provided by the Government to guarantee a minimum service, the Committee requested the Government to provide additional information on the compensatory guarantees or resolution mechanisms applicable in disputes in the prison services. The Committee notes that the Government refers in particular: (i) to the Royal Decree of 19 November 2019, which, pursuant to sections 15 and 16 of the Act of 23 March 2019, defines the consultation and negotiation procedures to be followed in the event of industrial disputes, with or without strike notice; and (ii) Memorandum of Understanding No. 351, concluded on 19 April 2010 within Sectoral Committee III Justice, relating to the mutual commitments of the Federal Public Service (SPF) Justice, the General Directorate of Prisons and the public trade unions representing the staff of the external services of prisons in the context of strengthening social dialogue and conflict management within the prison system. The Committee notes that the Memorandum of Understanding defines the modalities of dispute management and confirms the intention of the partners to resolve industrial disputes through social dialogue and, where appropriate, independent mediation. The Committee also notes the concern expressed by the trade union organizations regarding the inability of prison officials to effectively exercise their right to strike due to structural understaffing in prisons, as well as the Government’s reply in this regard. While noting the information provided by the Government and the trade union organizations concerning the establishment of a minimum service, the Committee requests the Government to continue to provide information on the resolution mechanisms applicable in disputes in the prison services.

Violations of the right to strike. Replacement of striking workers by students. The Committee notes the concerns raised by the FGTB, the CSC and the CGSLB regarding the possibility for employers to replace striking workers with students. The trade union organizations observe that, although they often support the enterprise’s workers in their struggle, students have no choice but to agree to enterprises’ requests to work during a staff strike, or risk not having their student contracts renewed. The Committee notes the Government’s indication that on 1 June 2023, the Federal Minister of Labour submitted a draft legislative text to the social partners in the National Labour Council (CNT) for their opinion, prohibiting the replacement of striking workers by workers on student contracts. Taking due note of this initiative, the Committee trusts that the Government, in collaboration with the social partners, will soon be able to announce an end to the practice of replacing striking workers with workers on student contracts, which constitutes a serious obstacle to the exercise of the right to strike.

Increase in the number of orders issued upon ex parte applications. The above-mentioned trade union organizations allege an upsurge in the use of summary proceedings by employers to prevent strike pickets. They explain that: (i) during a recent industrial dispute concerning the franchising of a major chain’s stores, a large number of ex parte applications were lodged by employers alleging a risk of assaults, and (ii) the urgent applications judges hearing the case declared the applications to be admissible and well-founded in several judicial districts in Brussels, Flanders and Wallonia, effectively depriving the workers of the right to set up picket lines. The trade union organizations observe that these decisions impose drastic general bans (some covering the whole of Belgium) on striking workers, who risk very heavy fines. They denounce the absence of a fair balance between the interests at stake, with the courts seizing, in their view, exorbitant power in the dispute, when the absolute necessity that can justify recourse to ex parte applications is of strict interpretation. Although some courts have set aside three orders, the trade union organizations believe that the number of unfavourable orders is on the rise.

The Committee notes the Government’s indications concerning the summary proceedings before the President of the Court of First Instance, reserved for cases of absolute necessity in which the opposing party is not summoned. The Government reports that: (i) there must be urgency, enabling the applicant to obtain an immediate protection order. Urgency cannot be understood as the “mere fear” of irreparable harm, but as the existence or threat of very serious harm. Urgency is assessed by the judge; (ii) the president may take measures that are not timebound; (iii) presidential orders are enforceable by operation of law. Neither appeals nor applications by third parties to set aside such orders suspend enforcement; (iv) they may be accompanied by a fine of 500 to 1,000 euros per person per offence; (v) an appeal may also be lodged against the order, by the applicants or intervening parties. A third party that has suffered harm as a result of the order may apply to have set it aside. On this point, the Government observes that the trade union organizations note that three courts have recently set aside three orders on the basis of applications by third parties.

The Committee notes the information provided by both the Government and the trade union organizations. It notes that, according to the latter, the use by certain employers of the ex parte application procedure is intended to prevent workers from exercising an essential aspect of the right to strike, namely picketing, whereas this application procedure is reserved for cases of absolute necessity which, as the Government confirms, is of strict interpretation. On the question of the presence, at the entry to the workplace, of strike pickets aimed at ensuring the success of the strike by persuading the workers concerned to stay away from work, the Committee wishes to recall that it considers that: (i) in so far as the strike remains peaceful, strike pickets and workplace occupations should be allowed. Restrictions on strike pickets and workplace occupations can only be accepted where the action ceases to be peaceful; and (ii) it is however necessary in all cases to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises (see the 2012 General Survey on the fundamental Conventions, paragraph 149). In view of the foregoing and observing that the allegations made by the trade union organizations concern recent events, the Committee requests the Government to provide information on the number and results of judicial decisions handed down under the ex parte application procedure, with regard to the issue of strike pickets. The Committee requests the Governmentto indicate the amount of fines incurred, if applicable. The Committee also requests the Government to provide information on the number of appeals lodged and results of those appeals.

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

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.

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

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.]

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

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.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the joint observations of the Federation of Enterprises in Belgium (FEB) and the International Organisation of Employers (IOE), received on 1 September 2016, which relate to the issues dealt with by the Committee in this comment and also to the observations of a general nature of the IOE, received on the same day.

Article 3 of the Convention. Right of trade union organizations to formulate their programmes. In its previous comments, the Committee had noted the observations made by trade union organizations denouncing systematic recourse by employers to the judicial authorities to ban industrial action by trade unions, and particularly to prevent trade unions from setting up strike pickets. The Committee had requested the Government to ensure full compliance by all of the actors and institutions concerned with the “gentlemen’s agreement” concluded in 2002 by the social partners on the peaceful settlement of labour disputes and the 2012 resolution of the Committee of Ministers of the Council of Europe considering that certain aspects relating to the right to strike needed to be improved. In this regard, the Committee notes the various elements provided by the FEB and the IOE, on the one hand, and by the Government, on the other. The Committee observes that the Council of Europe’s resolution has been circulated and that, according to both the Government and the employers’ organizations, it is taken into account in judicial decisions. The Committee also notes the Government’s indications concerning the discussions held between the social partners to revise the “gentlemen’s agreement”, although they have not yet produced an agreement. Lastly, the Committee notes the positions expressed by the IOE and the FEB, on the one hand, and the Government, on the other, in relation to a ruling by the Court of Cassation of 8 December 2014 recalling that the submission of a unilateral application to a court in the context of a collective dispute is only receivable in exceptional circumstances.

In its previous comments, the Committee also requested the Government to provide information on the findings of the investigations carried out into the arrests at the Euro-demonstration on 29 September 2010 organized in Brussels by European trade unions. The Committee notes the Government’s response on this issue and, in particular, the evaluation by the Standing Police Monitoring Committee.

In its previous comments, the Committee requested the Government to provide comments in reply to the observations of trade unions alleging the abusive application by municipal authorities of administrative penalties for “disturbances”, which would have the effect of jeopardizing the various types of action carried out by trade unions in public spaces. In this respect, the Committee notes the Government’s indications that: (i) the Act of 24 June 2013 on communal administrative sanctions allows communal authorities to issue administrative penalties or sanctions for infringements of their regulations or ordinances; (ii) although the communal authorities are autonomous in this respect, they are of course bound to respect the hierarchy of legal norms; (iii) the Constitutional Court, having received an application for unconstitutionality from various trade union organizations, set aside the appeal in a ruling of 23 April 2015; and (iv) the Court recalled in this ruling that freedom of movement may give rise to restrictions where they are provided for by law and necessary for life in a democratic society. The Committee notes this information and trusts that the Act of 24 June 2013 will be applied in full conformity with the Convention.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 3 of the Convention. In its previous comments, the Committee noted the observations made by trade union organizations denouncing systematic recourse by employers to the judicial authorities to ban industrial action by trade unions, and particularly to prevent them from setting up strike pickets. The Government indicated that it had requested the National Labour Council (CNT) to examine compliance with the “gentlemen’s agreement” signed in 2002 by the social partners on the peaceful settlement of labour conflicts. The Committee requested the Government to report on the findings of this examination and any action taken as a result.

In this respect, the Committee notes the information provided by the Government in its report indicating that: (i) the CNT has received a partial response from the judicial authorities on the scope of legal interventions in cases of collective disputes, although certain urgent matters have delayed the CNT’s examination of the matter up to now; (ii) Belgian trade unions and the European Trade Union Confederation lodged a collective complaint in June 2009 with the European Committee of Social Rights alleging the violation by Belgium of the European Social Charter (revised); (iii) the Committee of Ministers of the Council of Europe adopted a resolution on 4 April 2012 considering that certain elements relating to the right to strike were to be improved, and it considered in particular that the procedure for the intervention of the judge of the court of first instance in the context of a unilateral application to prevent certain types of industrial action was not sufficiently “fair” because the trade unions were not associated with it and the intervention of the courts is not lawful if it is intended to prevent certain types of industrial action or prohibit a strike picket without ascertaining whether acts of violence have been committed or the rights of non-strikers have been infringed; and (iv) the Minister of Labour forwarded this decision to the CNT, while the Minister of Justice disseminated it to magistrates. The Committee also notes that the trade unions report the persistence of court rulings that are contrary to the right to collective action. The Committee requests the Government to ensure full compliance with the “gentlemen’s agreement” and the resolution of the Committee of Ministers of the Council of Europe by all the actors and institutions concerned. The Committee requests the Government to indicate in its next report the impact of the resolution of the Committee of Ministers.

In its previous comments, the Committee requested the Government to provide its observations in reply to the comments of the ITUC concerning the arrests, certain of which were taken as a preventive measure, on 29 September 2010 at the Euro-demonstration organized in Brussels by European trade unions. The Committee notes the Government’s indication in its report that the administrative service concerned is examining the matter. The Committee recalls that measures depriving trade union leaders and trade unionists of their freedom on grounds related to their trade union activities, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights. The Committee once again requests the Government to indicate the findings of the investigations carried out concerning these arrests.

Finally, the Committee notes the comments of the International Trade Union Confederation, the Confederation of Christian Trade Unions, the General Confederation of Liberal Trade Unions of Belgium and the General Labour Federation of Belgium concerning the abusive application by municipal authorities of administrative penalties for “disturbances” which would have the effect of jeopardizing the various types of action carried out by trade unions in public spaces. The Committee requests the Government to provide its observations in reply to these comments.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

Comments from trade union organizations. The Committee notes the comments dated 4 August 2011 from the International Trade Union Confederation (ITUC) concerning the implementation of the Convention, in particular the systematic recourse by employers to the judicial authority to ban trade unions from taking industrial action, especially from setting up strike pickets. The ITUC denounces the employers’ failure to respect the “Gentlemen’s Agreement” concluded by the social partners in 2002 on the peaceful settlement of industrial disputes. The Committee recalls that, in its previous observation, it had noted comments on this same point made by the Confederation of Christian Trade Unions (CSC), the General Labour Federation of Belgium (FGTB) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB) dated 21 December 2009. The Committee notes that in its reply, the Government expresses its full recognition of the right to industrial action, such as the right to organize peaceful strike pickets, which it considers inherent in the binding nature of international treaties ratified by Belgium. The Government states that it regrets that certain employers abuse their right of recourse to the judicial authority but indicates that the number of appeals is limited. Recalling the wide network of institutions for sectoral dialogue, conciliation offices and a professional body of social conciliators put in place by the public authorities, the Government also states that it has requested the National Labour Council to examine compliance with the “Gentlemen’s Agreement” signed in 2002 by the social partners. The Committee requests the Government to report on the findings of its examination on compliance with the “Gentlemen’s Agreement” concerning the peaceful settlement of industrial disputes, as well as on any follow-up.

The Committee further recalls that in their communication dated 21 December 2009, the CSC, the FGTB and the CGSLB had also denounced a court decision restricting the autonomy of trade unions in the exercise of their disciplinary powers. In this respect, the Committee notes the Government’s reply that the ruling of first instance that had been criticized had been overturned by the Antwerp Court of Appeal, which considered that a trade union had the right to exclude a member in accordance with its own statutes and respect of the right of defence. The Committee notes this information.

The Committee notes that, in its communication of August 2011, the ITUC reported that the police had made 250 arrests at the Euro-demonstration in Brussels on 29 September 2010, which had been organized by European trade unions; 150 of these arrests had been carried out as a preventive measure, even before the demonstration was held. The Committee requests the Government to provide its observations in reply to the comments by the ITUC.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Comments from trade union organizations. The Committee notes the communication dated 21 December 2009 from the Confederation of Christian Trade Unions (CSC), the General Labour Federation of Belgium (FGTB) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB) concerning in particular a court decision restricting the autonomy of trade unions in the exercise of their disciplinary powers, and also the systematic recourse by employers to the judicial authority in order to prohibit collective action on the part of the trade unions, particularly the installation of strike pickets. The Committee recalls that it previously noted the observations of the International Trade Union Confederation (ITUC) dated 26 August 2009 concerning this same point. The Committee requests the Government to send its observations in reply to the comments made by the ITUC and to the communication from the CSC, FGTB and CGSLB.

Article 3 of the Convention. The Committee also recalls that it has been commenting for many years on the need to take steps to adopt objective, pre‑established and precise legislative criteria determining the rules for access of the occupational organizations of workers and employers to the National Labour Council. In its previous observation the Committee noted the information to the effect that a political agreement was reached in September 2009 in consultation with the most representative workers’ and employers’ organizations to amend the Organic Act of 29 May 1952 in such a way as to establish quantitative and qualitative criteria which the most representative organizations wishing to be represented on the National Labour Council would have to meet. The Committee notes with satisfaction the adoption of the Act of 30 December 2009 issuing various provisions, in particular Chapter 6 of Title 10 of the aforementioned Act, which amends the principal laws relating to collective labour relations, including the Organic Act of 22 May 1952 of the National Labour Council. The Committee notes that, under the terms of the Act, workers’ organizations must now satisfy in a cumulative manner the following criteria of representativeness: being constituted at national level and operating on an inter-occupational basis; representing the majority of sectors and staff categories in the public and private sectors: having a minimum number of paid-up members; and including the defence of workers’ interests among the objectives laid down by its rules.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the International Trade Union Confederation (ITUC), dated 26 August 2009, concerning the increasingly systematic acts by employers of the judicial authorities to prohibit certain types of collective action by trade unions, and particularly the setting up of strike pickets. In the view of the ITUC, trade unions are not able to fully exercise their right to collective action since the informal agreement in 2002 between the social partners envisages that referral of trade disputes to the court would only occur when conciliation procedures have been exhausted and certain courts still issue injunctions even before the commencement of collective action. The Committee requests the Government to provide its observations on the ITUC’s comments.

The Committee recalls that its comments have for many years concerned the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining the rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect, the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government. The Committee notes with interest the information that a political agreement was found in September 2009 in consultation with the most representative organizations to amend the Organic Act of 29 May 1952 with a view to establishing quantitative and qualitative criteria that the most representative organizations which wish to be represented on the National Labour Council would have to meet. In this respect, the Government indicates that a Bill will be tabled at the beginning of the parliamentary session to amend the Act of 29 May 1952 and that the National Labour Council approved a draft which will be adopted by the Parliament before the end of the year relating to the criteria of representativeness. The Committee requests the Government to provide a copy of the Act once it is adopted.

Finally, the Committee notes the detailed information contained in the Government’s report relating to the latest developments in case law respecting the protection of freedom of association and invites the Government to continue to provide information of this nature, where appropriate.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the detailed information contained in the Government’s report. It also notes the Government’s reply to the comments made by the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC), on 10 August 2006 concerning dismissals of trade unionists following strikes and the adoption of a circular by the Minister of the Interior and the resulting orders with a view to limiting recourse to strike pickets. In this respect, the Committee notes the Government’s comments according to which the Labour Court has ordered the reinstatement of a trade union delegate. Moreover, according to the Government, a strike in the automobile sector was characterized by intimidation and violence. The Committee recalls that no one should be subjected to discrimination with regard to employment because of legitimate trade union activities. Moreover, the action of pickets organized in accordance with the law should not be subject to interference by the public authorities. However, the Committee has considered legitimate a legal provision that prohibited pickets from disturbing public order and threatening workers who continued to work. The Committee also notes the observations by the International Trade Union Confederation (ITUC) of 28 August 2007 relating to the same issues as the ICFTU’s communication.

The Committee recalls that its previous comments have for many years concerned the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect, the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government. The Committee notes the Government’s indication that no amendment has been made to the relevant legislation with regard to the criteria for the representativeness of the most representative organizations of employers and workers which have access to the various levels of social dialogue. This situation of socio-political consensus is based, according to the Government, on the de facto situation of the massive and undeniable representativeness of the organizations concerned. The Committee once again recalls that, irrespective of the de facto situation in each country, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 97). The Committee once again expresses the firm hope that the Government will be in a position to adopt legislative provisions establishing specific and appropriate criteria of representativeness in the very near future and it requests the Government to indicate the measures adopted in this respect in its next report.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), of 10 August 2006, which refer, among other matters, to reprisals for the right to strike in the automobile sector and other restrictions on the exercise of the right to strike in various sectors, including a circular and a police order restricting strike pickets. In this respect, the Committee requests the Government to provide its observations on the comments of the ICFTU.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its comments for the Committee’s next session in November-December 2007 on the matters raised in its previous observation in 2005 (see 2005 observation, 76th Session).

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report.

The Committee recalls that for many years its comments have focused on the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government.

The Committee notes with interest the Government’s indication that: (1) it intends to make certain changes to the legislation respecting industrial relations and that the revision of the criteria of representativeness along the lines indicated by the Committee duly appears in the draft amendments; (2) the revisions under consideration concern several legislative texts but there has been no decision yet as to whether these modifications or revisions will be covered by a global approach or by successive or separate amendments (in the case of a global approach, the process will be slower); and (3) the Committee will be informed of any development in this respect, with which Parliament and the social partners will be involved.

The Committee hopes that, during the process of the amendment of the legislation referred to by the Government, objective and pre-established criteria adapted to the needs of the country will be adopted to determine the rules for the access of occupational organizations of workers and employers to the National Labour Council and that this process will be completed in the near future. The Committee requests the Government to inform it in its next report of any developments in this respect.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information contained in the Government’s report.

The Committee recalls that its previous comments have for many years focused on the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government. The Committee notes, from the Government’s report, that a change in the situation would not be appropriate in the short term for the following reasons: successive social elections show an undeniable strengthening of representative organizations, whereas the non-representative trade union, which is nevertheless specific to higher and middle-level managerial staff, has seen a constant and very significant reduction in its support; the new social elections which will be held in May 2004 will provide new elements for assessing general trends; it would therefore be premature to undertake changes in the system that are of a particularly delicate nature in the meantime; the problems of representativeness and the role accorded to workers’ and employers’ organizations in the European Union provide a context which will be increasingly essential over the next decade; the situation is also characterized by the weak employment situation.

The Committee considers that, despite the elements referred to by the Government in its report, namely a trend favouring trade unions recognized as being representative and a decline in the representativeness of trade unions specifically devoted to representing managerial staff, it is nevertheless necessary to adopt objective, pre-established and detailed criteria governing the rules of access of the occupational organizations of workers and employers to the National Labour Council. The Committee considers that the absence of such criteria is likely to unduly influence the choice of an organization by workers and to establish obstacles to the emergence of other representative organizations. The Committee recalls in this respect that this issue has been the subject of several complaints to the Committee on Freedom of Association. However, the objective of the development of such criteria is not in any way to impose a change in the current representation of workers, but solely to allow such a change if the workers so wish. The Committee also recalls that the Government enjoys broad discretion as to the criteria to be adopted in order to respond to the needs of the country’s current delicate situation, as indicated in its report. The Committee therefore requests the Government to take all the necessary measures to adopt objective and pre-established criteria that are appropriate to the needs of the country in the very near future and to keep it informed of any measure adopted or envisaged for this purpose.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the detailed information contained in the Government’s report.

The Committee recalls that its previous comments have for many years focused on the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government. The Committee notes the Government’s statements that if no amendment to the legislation has yet been made, this is because it has had to take into account many parameters, such as the maintenance of cohesion and therefore social solidarity, the wishes of the workers expressed fairly clearly during social elections and the well-recognized need to avoid centrifugal trends in social dialogue. The Committee also notes that, according to the Government, an amendment can certainly not be excluded, but its form must be envisaged with care. The Committee expresses the firm hope that the Government will be in a position to adopt legal provisions in the very near future determining specific and appropriate criteria of representativeness and requests the Government to indicate the measures taken in this respect in its next report.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes due note of the detailed information contained in the Government’s report.

The Committee recalls that it has been commenting for many years on the need to take measures for the adoption of objective, pre-established and detailed legislative criteria determining rules for the access of the occupational organizations of workers and employers to the National Labour Council, and that in this respect the Organic Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness, but leaves broad discretionary power to the Government. The Committee notes the Government’s indications that works council elections have recently been held, that the results are still not definitive and that it would be premature at this stage to modify the arrangements for social dialogue in Belgium. The Government also states that reflection has been initiated at the national level concerning social dialogue and the issue of representativeness. While noting this information, the Committee once again expresses the firm hope that the Government will adopt legal provisions in the near future determining the criteria of representativeness, and requests the Government to indicate any progress achieved in this regard in its next report.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with interest the detailed information contained in the Government's report.

The Committee recalls that it has been commenting for many years on the need to ensure by law that objective, pre-established and detailed criteria are adopted in establishing rules for the access of professional and workers' organizations to the National Labour Council and that, in this respect, the Organic Act of 29 May 1952 instituting the National Labour Council still contains no specific criteria on representativeness but leaves discretionary power to the Government. The Committee notes the information in response to the question of establishing rules for the access of the social partners to the Labour Council and the explanations provided by the Government to the effect that social dialogue is taking place within a particularly difficult context since the National Labour Council constitutes only one of the component parts of the much wider ensemble within which social partnerships develop. Nevertheless, the Committee firmly hopes that the Government will shortly adopt the legal provisions laying down the criteria on representativeness and requests the Government to indicate in its next report any progress achieved in this respect.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information contained in the Government's report.

Once again, the Committee can only reiterate that for many years its previous comments have related to the need to take measures to ensure by law that objective, predetermined and detailed criteria are adopted in establishing rules for the access of workers' and employers' occupational organizations to the National Labour Council and that in this regard the Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativeness but leaves wide powers of discretion over nomination to the Goverment. The Committee expresses the firm hope that the Government will adopt legislation, in the near future, setting out such criteria. It requests the Government to indicate in its next report any progress made in this respect.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

Referring to Case No. 1250 which was examined by the Committee on Freedom of Association in its 251st Report, approved by the Governing Body in May 1987, the Committee requests the Government to indicate in its next report what is the situation of the National Union of Independent Trade Unions (UNSI) regarding access to the National Labour Council.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the detailed information supplied by the Government concerning the results of the elections held in 1995 from which it appears particularly that the Confederation of Christian Trade Unions (CSC), the General Confederation of Free Trade Unions of Belgium (CGSLB) and the Belgian General Federation of Labour (FGTB) comply with the conditions fixed by the law to be recognized as representative workers' organizations.

Recalling that its comments for many years have related to the need to take measures to ensure by law that objective, predetermined and detailed criteria are adopted in establishing rules for the access of workers' and employers' occupational organizations to the National Labour Council and that in this regard the Act of 29 May 1952 establishing the National Labour Council still contains no specific criteria on representativity but leaves wide powers of discretion to the Government, the Committee expresses the firm hope that the Government will adopt legislation, in the near future, setting out such criteria. It requests the Government to indicate in its next report any progress made in this respect.

In addition, the Committee is sending the Government a direct request.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes that the Government's report has not been received. It must therefore repeat its previous observation which read as follows:

With reference to its previous comments on the need to ensure by law that objective, predetermined and detailed criteria are adopted in establishing rules for the access of workers' and employers' occupational organizations to the National Labour Council and the various public and private sector committees in which binding collective agreements are formulated, the Committee takes due note of the Government's statement in its report that the Minister of Employment and Labour is currently preparing a Bill setting out such objective criteria, which will be submitted to the social partners for their opinion and to the Government for approval. According to the Government, the Minister will state and explain in writing the "unwritten" objective criteria for admission which the Government has applied for some time and which are accepted by the Belgian judiciary. In order to sit on the National Labour Council, occupational organizations must, among other requirements, be nationwide bodies, be present in the great majority of sectors, have stability and a minimum number of contributing members to be checked by an objective body. The Committee also notes the Government's indication in its report that the National Confederation of Executive Staff (CNC) has been unable to demonstrate that it is representative - it reportedly obtained only 1.76 per cent of the total number of votes cast by all categories of workers at the social elections in June 1991 and is not interoccupational in nature - and did not obtain a seat on the National Labour Council when the latter's membership was renewed in December 1990. The Committee recalls that it has been commenting on this matter for many years, and expresses the firm hope that the Government will do everything in its power to ensure that the Bill currently being prepared is adopted in the very near future, in order to preclude any partiality or abuse in the choice of organizations authorized to sit on these bodies, and asks the Government to indicate any progress made in this respect in its next report.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

With reference to its previous comments on the need to ensure by law that objective, predetermined and detailed criteria are adopted in establishing rules for the access of workers' and employers' occupational organizations to the National Labour Council and the various public and private sector committees in which binding collective agreements are formulated, the Committee takes note of the Government's statement, once again, in its report that the Cabinet of the Minister of Employment and Labour has instructed the administration to prepare, as soon as possible, a bill on the representativity of occupational organizations.

The Government explains that the introduction of such legislative provisions has many ramifications and could lead to a review of the systems of representation in the joint management bodies of the social security system, in the various consultation bodies of the economic and social sectors (particularly in the gas and electricity sectors) and to a new approach to the composition and functioning of consultation bodies in the civil service or public corporations. Bearing in mind the scope and complexity of the subject, the Government indicates that several methodology outlines are envisaged and that consultations should be held, particularly with the ILO, in regard to assessment of the various formulas currently being studied.

Recalling that it has been commenting on this matter for many years, the Committee must remind the Government, as did the Committee on Freedom of Association, that it is not incompatible with the principles of freedom of association to establish a distinction between the most representative trade unions and the others if this distinction depends on objective, pre-established and specific criteria, in order to avoid any partiality or abuse. The Committee emphasizes the availability of the ILO to contribute to the adopting of legislation in conformity with the principles of freedom of association and expresses once again its firm hope that the Government will do its utmost to adopt in the near future a law containing such criteria on the representativity of occupational organizations. The Committee asks the Government to indicate any progress made in this respect in its next report.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

With reference to its previous comments on the need to ensure by law that objective, predetermined and detailed criteria are adopted in establishing rules for the access of workers' and employers' occupational organizations to the National Labour Council and the various public and private sector committees in which binding collective agreements are formulated, the Committee takes due note of the Government's statement in its report that the Minister of Employment and Labour is currently preparing a Bill setting out such objective criteria, which will be submitted to the social partners for their opinion and to the Government for approval.

According to the Government, the Minister will state and explain in writing the "unwritten" objective criteria for admission which the Government has applied for some time and which are accepted by the Belgian judiciary. In order to sit on the National Labour Council, occupational organizations must, among other requirements, be nationwide bodies, be present in the great majority of sectors, have stability and a minimum number of contributing members to be checked by an objective body.

The Committee also notes the Government's indication in its report that the National Confederation of Executive Staff (CNC) has been unable to demonstrate that it is representative - it reportedly obtained only 1.76 per cent of the total number of votes cast by all categories of workers at the social elections in June 1991 and is not interoccupational in nature - and did not obtain a seat on the National Labour Council when the latter's membership was renewed in December 1990.

The Committee recalls that it has been commenting on this matter for many years, and expresses the firm hope that the Government will do everything in its power to ensure that the Bill currently being prepared is adopted, in order to preclude any partiality or abuse in the choice of organizations authorized to sit on these bodies, and asks the Government to indicate any progress made in this respect in its next report.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

For several years, the Committee has been drawing the Government's attention to the need to take steps for the adoption by legislative means of objective, predetermined and detailed criteria to govern the rules for the access for workers' and employers' occupational organisations to the National Labour Council and to the various public and private sector committees in which binding collective agreements are formulated, in order to avoid any possibility of partiality or abuse in the choice of organisations authorised to sit on these bodies.

In its last report, the Government merely points out that representativity among organisations is not static, but is slow to change. It adds that division into too many competing organisations and corporatism tends to distort and even obstruct collective bargaining. It also states that legislative amendments can only be introduced with caution into a system which has been tried and tested, but that it is paying heed to these problems which affect both private and public sectors.

In addition, the Committee has been informed that no seats were assigned to the National Confederation of Executive Staff on the National Labour Council when it was renewed for four years on 15 December 1990, despite the fact that objective, predetermined and detailed criteria have not been adopted to govern the rules for access to the above Council.

The Committee must therefore remind the Government that to draw a distinction between the most representative unions and other unions is not incompatible with the right to organise if such a distinction is based on objective, predetermined and detailed criteria.

The Committee once again expresses the hope that the Government will indicate in its next report the measures taken or envisaged to bring its legislation into conformity with the Convention.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

In its previous comments, the Committee invited the Government to take steps for the adoption by legislative means of objective, pre-determined and detailed criteria to govern the rules for the access of workers' and employers' occupational organisations to the National Labour Council and to the various public and private sector committees in which binding collective agreements are formulated, in order to avoid any possibility of partiality or abuse in the choice of organisations authorised to sit on these bodies.

The Committee notes with regret the Government's statement that it does not envisage at the present time amending the legislation in this sense. It does, however, indicate that this matter remains one of the Government's concerns and is still under study. The Committee expresses the firm hope that the Government will indicate in its next report the measures that have been taken in order to bring its legislation into conformity with the Convention.