Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Belgique (Ratification: 1953)

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 International Organisation of Employers (IOE) and of the Federation of Enterprises in Belgium (FEB), dated 28 September and 1 October 2020, concerning issues raised in the present comment. It also 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 9 November 2020, which, apart from referring to the issues examined in the present comment, denounce the lack of negotiation with trade unions regarding the adoption of measures to tackle the health crisis. The Committee requests the Government to send its comments on this point.

Article 1 of the Convention. Protection of staff delegates against anti-union discrimination. The Committee notes the allegations of the FGTB, CSC and CGSLB concerning an absence of adequately dissuasive penalties for abusive dismissal of staff representatives, and the Government’s reply in this regard, based on the Act of 19 March 1991, as amended in August 2002, which establishes specific dismissal procedures for employee delegates on workers’ councils and safety, health and workplace embellishment committees and for candidate employee delegates.

Article 4. Right to collective bargaining. Wage fixing. The Committee notes the observations of the trade union organizations on the Act of 26 July 1996 on employment promotion and the preventive maintenance of competitiveness, as amended by the Act of 19 March 2017. The trade union organizations indicate that the provisions of the Act result in the fixing of a maximum wage band that severely limits the possibilities for collective bargaining and does not really allow wage increases, not only on the national level, but also at the sectoral and enterprise level. The Committee notes that, according to the Government: (i) the goal of the legislation in question is to reduce the gap in wage costs with neighbouring countries in order to encourage the competitiveness of the country’s enterprises and the development of employment; and (ii) the mechanism for negotiating the wage band and wages has not been amended, and the role of the social partners remains critical in wage fixing. The Government explains that wage standards are determined by the Group of Ten comprising the executive bodies of the trade union and employers’ organizations, in the framework of the Interoccupational Agreement (AIP), based on the technical report of the Secretariat of the Central Economic Council (CCE). The Government indicates that: (i) the AIP has to be concluded before 15 January in odd-numbered years; (ii) the wage standard is then established through a collective labour agreement concluded by the National Labour Council (CNT), which is made obligatory by the King; (iii) if the social partners do not reach an agreement, the Government must summon them to a dialogue and formulate a mediation proposal; (iv) if no agreement is reached in the month following the dialogue, the King, by degree discussed by the Council of Ministers, shall fix the maximum band of wage cost increases for the two years that should have been covered by the AIP ; and (v) negotiations at the sectoral and enterprise level are then held, respecting the wage band determined at the interoccupational level. Therefore, in the Government’s view, the social partners play an important decision-making role in the wage fixing process, and the public authorities intervene only if they do not reach agreement. The Committee notes that an AIP was concluded for 2017–18, but that no agreement was reached for 2019–20 owing to an absence of unanimity in the Group of Ten, as had already been the case in 2013–14 and 2015–16. In this regard, the Committee recalls that the system had already been criticized by the FGTB, CSC and CGSLB in 2013. At that time, the Government explained that the system placed emphasis on the participation of the social partners and that, in the cases where the public authority had to fix the wage band due to a lack of agreement, it had followed the draft agreement concluded by the majority of the social partners. The Committee noted those replies. The Committee also notes that the IOE and the FEB emphasize that: (i) the social partners remain fully competent for negotiating wage adjustments and that the Government only intervenes on a subsidiary basis; and (ii) any such political decision is only valid for a limited duration. It applies for a maximum period of two years, after which the social partners regain their freedom of collective bargaining in each case. Noting the divergence in approach between the trade unions, on the one hand, and the Government and employers’ organizations, on the other, the Committee requests the Government to provide detailed information on the effect given to the provisions of the Act of 26 July 1996, as amended by the Act of 19 March 2017, so that it can assess their effects on the possibility of negotiating wages at any level.

Harmonization of the joint committees and workers in the platform economy. In its previous comments, the Committee noted the allegations of the trade unions that workers in the platform economy are excluded from the scope of the Act of 5 December 1968 governing the negotiation and conclusion of collective labour agreements, which implies that they are unable to participate in the negotiation of collective labour agreements. In this regard, the Committee noted the Government’s indications that the so-called “collaborative” economy, established by the Framework Act of 1 July 2016 and amended by the Act of 18 July 2018 on economic recovery and the strengthening of social cohesion, is a limited regime legally governed by a certain number of cumulative conditions. In particular, the activity must: (i) be provided through an approved platform that is also the intermediary for the payment for the service; (ii) be performed only by an individual for the benefit of another individual (delivery services to individuals of meals prepared by restaurants, for example, are excluded); (iii) be undertaken outside any occupational activity; and (iv) not result in compensation of over €6,250 a year. The Government also explains that: (i) when these conditions are fulfilled, the collaborative economy regime is applicable, as the services are provided outside occupational activity and any relation of subordination; (ii) in view of the limited amount of the compensation, the service providers are not in a situation of economic dependence in relation to either the approved platforms or those giving instructions; (iii) when the conditions for the collaborative economy regime are not fulfilled, the income is classified for tax purposes as self-employed income (resulting in the provider being subject to self-employed status), unless the provider proves that it is not occupational income (not subject to social security) or that the work is performed in the context of a relationship of subordination (subject to social security for employees); and (iv) if the work is performed in the context of a relationship of subordination, the whole body of labour law applies, including the regulations guaranteeing freedom of association, the right to organize and collective bargaining. The Government indicated that the self-employed may join bodies that defend the rights of self-employed workers, particularly in relation to Government authorities. The Committee noted that the information provided by the Government in reply to the allegations of the trade unions mainly related to people in the so-called “collaborative” economy (which, under the terms of the Act of 18 July 2018, consists of services of low economic value provided outside of occupational activity), which it distinguishes from other platform workers. However, the Committee noted that, according to the Government, platform workers not covered by the collaborative economy regime are by default considered to be self-employed, and that the provisions of labour law, including the right to collective bargaining, only apply if the work is performed in the context of a relationship of subordination. The Committee notes the information provided by the Government and trade unions (the FGTB, CSC and CGSLB) that the Constitutional Court, in Judgment No. 2020/53 of 23 April 2020, annulled the Act of 18 July 2018 at the request, inter alia, of the most representative workers’ organizations and a number of employers’ federations. Having been requested to issue a ruling on the question of the conformity of the tax- and labour-related aspects of the aforementioned Act with the constitutional principles of equality and non-discrimination, in that the Act establishes a difference of treatment (in tax- and labour-related terms) regarding the performance of activities in the context of associative work, occasional services among citizens or services in the collaborative economy, the Court considered, for each of the three activities, that this difference of treatment was unjustified. The Constitutional Court explains that “even though the uncertainty regarding correct classification may if appropriate justify the establishment of a separate status, such a status has already been created by the Framework Act of 1 July 2016. Moreover, this lack of clarity regarding correct classification does not constitute grounds, under the impugned provisions, for this status to qualify for total exemption from coverage by the labour legislation, social security scheme and tax obligations” (point B.7.7 of the Judgment of the Constitutional Court of 23 April 2020). The Committee also notes the Government’s indication that, pending a response from the legislature, income from associative work, occasional services and the collaborative economy will follow the ordinary tax and social security classifications and rules from 1 January 2021.

However, the Committee notes that the Government does not provide any information concerning the collective rights of platform workers that is new in relation to the information already communicated in 2019, namely that platform workers not covered by the collaborative economy regime are by default considered to be self-employed and that it is only if their work is performed in the context of a relationship of subordination that the provisions of labour law, including the right to collective bargaining, will apply.

Without prejudice to the legal classification applicable to the various kinds of platform workers, the Committee recalls that, in so far as all workers, with the only possible exception of members of the armed forces and the police and civil servants engaged in the administration of the state, are covered by the convention, the right to collective bargaining should also apply to organizations representing self-employed workers (see the 2012 General Survey on the fundamental Conventions, paragraph 209). The Committee also recalls that it is aware that the collective bargaining machinery applied in traditional labour relations may not be adapted to the specific circumstances and conditions of the work of self-employed persons. In view of the above, and duly noting the information sent on the Constitutional Court decision of 23 April 2020, the Committee requests the Government to provide information on the various organizational structures in the digital platform economy and on the way in which the workers concerned are able to organize and conduct collective bargaining. The Committee invites the Government to hold consultations with the parties concerned with a view to ensuring that all platform workers covered by the Convention, irrespective of their contractual status, are authorized to participate in a free and voluntary collective bargaining. Considering that such consultations are intended to enable the Government and the social partners concerned to identify the appropriate adjustments to make to the collective bargaining mechanisms to facilitate their application to the various categories of platform workers, the Committee requests the Government to provide information on any progress achieved in this regard and on any legislative measures adopted or contemplated further to the Constitutional Court decision of 23 April 2020.

Night work for e-commerce. The Committee notes the allegations by the trade union organizations that the Government, through the Framework Act of 25 December 2017 and without consultation with the social partners, has made possible the introduction of night and Sunday work in enterprises engaged in e commerce with the agreement of a single representative trade union, rather than all of them. The Committee notes that the trade union confederations express their disagreement in this respect with what they consider to be a use of collective bargaining for the purposes of deregulation. The Committee also notes the Government’s indications that, where the law requires the conclusion of a collective agreement at the enterprise level as a condition for the implementation of a measure, the legislator thereby wishes to prevent the employer from being able to unilaterally introduce the stipulated measure and to guarantee social dialogue. The Government indicates that: (i) in accordance with the “normal” rules of Belgian collective labour law, a collective agreement at the enterprise level may be concluded by a single representative workers’ organization; (ii) stricter rules exist for night work, in the sense that, for example, in order to introduce a labour regime that includes night work (work performed between midnight and 5 a.m.), a collective labour agreement must be concluded with all the trade unions represented in the enterprise trade union delegation; and (iii) in order to facilitate night work for the purposes of e-commerce, the Belgian legislator re-introduced the “normal” rule, which means that the conclusion of a collective agreement at the enterprise level with a single trade union is sufficient to introduce night work into e-commerce. The Committee notes that, in respect of night work, the rules of collective bargaining applicable to e-commerce have been amended by the Framework Act of December 2017, and that the trade unions criticize both the lack of dialogue in this regard and the use of collective bargaining for purposes of deregulation. The Committee wishes to recall that, under Article 7 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Belgium, measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation, and, whenever possible, agreement between public authorities and employers’ and workers’ organizations. In view of the above, the Committee invites the Government to hold consultations with the parties concerned to assess the effects of the exemption to the rules of collective bargaining introduced for e-commerce in relation to night work, and to determine possible measures to be taken in this regard.

Taking trade union organisations to court for non-compliance with collective bargaining commitments. The Committee takes note of the observations of the FEB and the IOE, which contain allegations that Belgian companies are regularly confronted with trade union actions carried out in violation of the provisions of the sectoral collective labour agreements, such as conventional conciliation procedures and formalities related to strike notice. They consider that, as trade unions do not have legal personality, any action in court against them remains impossible and that the legal framework should be adapted to solve this problem and thus improve mutual trust between the social partners.

The Committee notes that the Government indicates that : (i) various laws confer on trade union organisations a limited, functional and active legal personality, such as the Law of 5 December 1968 on Collective Agreements and Joint Committees which, inter alia, allows representative trade unions to conclude collective labour agreements ; (ii) according to article 4 of this law, representative organisations may take legal action in all disputes to which the application of this law would give rise and for the defence of the rights of their members deriving from the agreements concluded by them; and (iii) this article implies that trade union organisations may take legal action as plaintiffs, but may also be sued if they do not comply with the aforementioned law or a collective agreement.

The Committee notes a divergence between the views of the employers' organisations mentioned above and those of the government in cases of non-compliance with commitments entered into under a collective agreement. It notes that article 4 of the Law of 5 December 1968 extends the prerogative granted by law to representative trade union organisations, although they do not have legal personality, to conclude collective agreements with the capacity to take legal action to enforce their content, and observes that the question raised by the employers' organisations concerns the counterpart of this right to take legal action, namely the possibility of bringing trade union organisations before the courts. While stressing that mutual respect for the commitments undertaken in collective agreements is a central aspect of the right to collective bargaining, the Committee requests the Government to indicate any legal obstacles that may prevent legal action from being taken against trade unions for failure to comply with their commitments in collective agreements, and to make any useful comments on the impact of the current situation on the effective implementation of collective agreements.