Definitive Report - Report No 53, 1961

Case No 244 (Belgium) - Complaint date: 25-NOV-60 - Closed

1. 28. The complaint of the Cartel of Independent Trade Unions for the Public Services (Brussels) is contained in a communication dated 25 November 1960. The text of the communication was transmitted to the Government, which forwarded its observations thereon in a communication dated 17 January 1961.
2. 29. Belgium has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 30. The complainants state that the Act of 23 July 1926 setting up the S.N.C.B. (Belgian National Railways Board) makes provision for the setting up of a joint committee composed of 20 members appointed by the Board of Directors and by the organisations representing the staff, the terms of reference of which include, among other things, the drawing up of the staff regulations. They go on to state that under the Trade Union Statute-lengthy extracts of which are quoted-seats on the joint committee are filled every six years on 1 November, so that the term of office of the joint committee coincides with that of members of the Board of Directors. These seats are apportioned among the organisations representing the staff on the basis of certified returns of their dues-paying membership. The only organisations which may apply for seats are those which represent a membership of at least one-tenth of the total S.N.C.B staff currently on the payroll. Allocation of the ten seats reserved for the trade union organisations is on the basis of proportional representation.
2. 31. At the present time, the complainants allege, the General Union for the Public Services (affiliated to the Socialist Common Action Party) and the Christian Union of Railway, Post, Telegraph, Telephone, Marine, Aeronautical and Radio Workers, are the only organisations recognised by the S.N.C.B and hence the only ones permitted to sit on the joint committee. The complainants declare that the Cartel of Independent Trade Unions for the Public Services is the union of considerably more than 10 per cent of the S.N.C.B staff; it is furthermore accredited as a representative organisation to all the ministerial departments, semi-official agencies and subsidiary authorities. In spite of these facts, which are not in issue, the Cartel is not recognised by the S.N.C.B for the purpose of participation in the work of the joint committee. The result, according to the plaintiffs, is that more than 10,000 Belgian railway workers have no one to speak for them either collectively or individually unless they consent to affiliate - which they do not wish to do-to one of the recognised organisations. The complainants add that this situation has continued for more than a year now, and, they conclude, " it cannot be denied that this constitutes an infringement of freedom of association and discrimination with regard to the defence of the workers, whose rights are respected only if they belong to specified organisations ".
3. 32. In its reply the Government observes that the arguments adduced in the communication from the complaining organisation imply that the S.N.C.B is not observing the Act of 24 May 1921 guaranteeing freedom of association. The Government declares, on the other hand, that such freedom of association is guaranteed absolutely in the S.N.C.B because each railwayman may join the trade union organisation of his own choosing. As for the relations between the S.N.C.B and the unions, the Government continues, the question must be settled exclusively in the context of the Act of 23 July 1926 setting up the S.N.C.B. (Belgian National Railways Board). Pursuant to section 13 of that Act the principle of such relations and the form which they are to take shall be laid down, among other things, in the staff regulations; to that end provision has been made for a national joint committee; the procedure for the apportionment and allocation of seats earmarked for organisations representing members of the staff are described by the Government in terms identical with the version given by the complainants.
4. 33. The Government states that the last elections to the joint committee took place on l November 1957 and that as the membership is renewed every six years, the next elections will be held on 1 November 1963. The Government adds that, on the basis of provisions in the staff regulations, the term of office of delegates already represented on the joint committee was renewed in 1957 for a further term of six years as no new candidatures had been submitted by new unrecognised organisations. The Government states that it will be open to the Cartel of Independent Trade Unions for the Public Services to secure representation at the time of the elections to the joint committee in 1963, provided that it fulfils the conditions laid down in the staff regulations for that purpose.
5. 34. In conclusion the Government points out that in their relations with the authorities, in the presentation of their defence or when appearing before the disciplinary appeals board, the persons in question are at all times free to secure the assistance not only of a delegate of a recognised organisation but also of any serving member of the staff.

B. B. The Committee's conclusions

1. 35. As a general principle the Committee considers that it is not called upon to express an opinion as to the right of a particular organisation to be invited to take part in consultative bodies unless its exclusion constitutes a clear case of discrimination affecting the principle of freedom of association. This is a matter to be determined by the Committee in the light of the facts of each given case.
2. 36. On the evidence before the Committee, it would appear that the complaining organisation, satisfying the criteria for eligibility for representation on the national joint committee (membership of more than 10 per cent of the staff), considers that it is being unjustifiably excluded. According to the documents attached in substantiation of the complaint, there would appear to be no doubt that the Cartel meets these criteria. It should however be noted that when the joint committee was last renewed, the complaining organisation did not appear to meet the conditions prescribed in the staff regulations. The organisation itself says that the situation of which it complains " has continued for more than a year now ", which means that it does not date back as far as the last elections to the joint committee. The Government for its part affirms that at the last elections no new organisation had submitted its candidature; it seems a fair assumption that the complaining organisation would not have failed to apply if it had been in a position to do so under the staff regulations.
3. 37. As for the provisions of the staff regulations themselves, the text of which is cited both by the complainants and by the Government, it would seem that they are framed in such terms and in such a spirit as to give satisfaction to all the parties concerned; in any event they contain nothing which might be construed as an infringement of freedom of association. Lastly, it would appear that the complaining organisation is otherwise able to carry on its trade union activities in the usual way.

The Committee's recommendations

1. 38. Under the circumstances the Committee considers that the criteria laid down in the staff regulations cannot be held to contain anything which infringes the principle of freedom of association, that the situation with which the complaining organisation is faced follows from the strict application of these staff regulations and, having regard to the fact that the complainants will have an opportunity of representation on the next joint committee if they continue to fulfil the requisite conditions, recommends the Governing Body to decide that the case does not call for further examination.