Informe provisional - Informe núm. 69, 1963

1. 66. The original complaint by the European Confederation of Autonomous Trade Unions of Railwaymen was submitted in a letter addressed directly to the I.L.O and dated 21 January 1962: this was supplemented by several subsequent letters dated 26 and 27 February, 31 July and 8 October 1962. The Cartel of Independent Trade Unions for the Public Services also made a complaint relating to the same situation by letter dated 27 February 1962. Lastly, the Independent Union of Belgian Railwaymen gave additional information supporting the allegations of the first two complainants, by letter dated 25 October 1962. All these communications were transmitted to the Belgian Government, as they were received, for its observations and the Government sent observations on them in four letters dated 11 May 1962, 15 October 1962 and 8 and 21 January 1963.
2. 67. 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. 68. The present case may be said to fall into two parts. In a first phase the complainants describe a situation which the Committee has had occasion to study in connection with a case previously brought before it. In a second phase, which corresponds to the latest communications from the complainants, new elements are mentioned which, the complainants consider, aggravate the alleged infringements of the exercise of trade union rights on the Belgian national railways and also indicate, on the part of the Belgian National Railways Board and the Government, an attitude directly intended to damage the union which the complainant organisations seek to defend in the name of the principles of free association. For convenience these two parts are analysed separately below.
2. 69. In their first series of communications (those dated before 31 July 1962) the complainants allege, in substance, that the Independent Union of Belgian Railwaymen has been treated in a manner showing discrimination against it: not being " recognised ", it has no seat on the national joint committee; and, this being so, it cannot duly " defend and promote " its members' interests.
3. 70. As stated above, the Committee has already examined a complaint respecting a similar situation (Case No. 244). It was formulated by the Cartel of Independent Trade Unions for the Public Services, one of the complainants in the present case; the Independent Union of Belgian Railwaymen is an affiliate of the Cartel, and also of the European Confederation of Autonomous Trade Unions of Railwaymen, another complainant in the present case.
4. 71. After examining Case No. 244 the Committee went on record as follows. The Act of 23 July 1926, which set up the Belgian National Railways Board, provides for the establishment of a joint committee composed of 20 members, to be appointed by the Board of Directors and by the organisations representing the staff. One of the committee's functions was to draw up staff regulations. According to the relevant part of these regulations, the seats on the joint committee are allocated every six years on 1 November, so that the term of office of the committee members shall coincide with that of members of the Board of Directors. The seats are distributed among the organisations to which members of the personnel belong, on the basis of audited statements of their paid-up membership. An organisation may " compete " in this connection only if it has a membership equal to at least one-tenth of the active personnel. The ten trade union seats on the joint committee are allocated on the basis of proportionate representation.
5. 72. The Committee also found that the complainant organisation did not have the necessary minimum membership when the joint committee had last been constituted (on 1 November 1957), but the Government did not deny that at the time of the complaint this organisation's membership exceeded one-tenth of the personnel.
6. 73. The Committee noted, lastly, that the criteria laid down in the staff regulations were framed in such terms and spirit as to give satisfaction to all concerned and that in any event they could not be considered as an infringement of the principles of free association. Accordingly, since the situation facing the complainant organisation followed from strict application of the staff regulations, and the said organisation would have an opportunity to be represented on the next joint committee if it continued to fulfil the requisite conditions, the Committee on Freedom of Association recommended the Governing Body to decide that the case did not call for further examination.
7. 74. In the case now before the Committee the complainants allege a situation similar in every way to that described above. In fact it is the same situation. Reference is again made to the staff regulations and their provisions respecting trade union representation, to the joint committee (which has not been reconstituted since examination of Case No. 244) and to the same trade union organisation, with the sole difference that the union now specified is an affiliate of the Cartel of Independent Trade Unions for the Public Services and no longer the Cartel itself.
8. 75. Once more it is alleged-and not denied by the Government-that the organisation in question has more than one-tenth of the personnel among its members and is therefore qualified to be represented on the joint committee. As the elements of the problem are unchanged, the Committee would normally have reached a conclusion similar to that which it thought proper in Case No. 244, i.e. it would have pointed out that the organisation in question can be a candidate at the next reconstitution of the joint committee on 1 November 1963, and would have recommended the Governing Body not to proceed further with the case.
9. 76. However, new information provided by the complainants in their letters of 31 July, 8 October and 25 October 1962 indicates-and this is the second phase referred to in paragraph 68 above-that the situation summarised above has changed in certain respects.
10. 77. According to the complainants the position described in their communications previous to 31 July 1962 has been aggravated. They state that according to the relevant part of the staff regulations, as it stood until recently, the following arrangements were to be made for reconstitution of the joint committee on 1 November 1963: (a) the trade unions must submit lists of their members four months before 1 November (i.e. 1 July 1963) to enable the seats to be allocated on the basis of declared membership; (b) a year before this allocation takes place, or on 1 July 1962, new organisations whose members made up 10 per cent of the personnel must deposit with the Board copies of their statutes and lists of their responsible representatives. The complainants add that the Independent Union of Belgian Railwaymen complied with these requirements and therefore qualified to participate.
11. 78. Nevertheless, the complainants continue, the conditions for qualification were modified, with immediate effect, by Notice No. 49 P, of which they provide a copy. Under these new provisions, to be eligible for seats any organisation not recognised by the Board must: (a) be affiliated to a national inter-occupational organisation with not less than 50,000 members, recognised by the National Labour Council and Central Economic Council and represented on these bodies; (b) not less than one year before the date on which the statement of paid-up membership is to be made, deposit with the Personnel and Social Services Department two copies of its statutes and a list of the names of its officers and official representatives.
12. 79. The complainants state that the obligation to have seats on the National Labour Council and Central Economic Council is impossible to meet, since the National Labour Council is reappointed at fixed intervals, the next appointments not being due until 1964, i.e. a year after reconstitution of the railways joint committee (which will not be constituted afresh, after that, until 1969). It is further alleged by the complainants that the new rules might, for instance, rule out an organisation composed of railwaymen only which included 90 per cent of the personnel and give all the seats on the joint committee to an inter-occupational organisation represented on the Labour and Economic Councils although it included only 10 per cent of the personnel. The complainants state, lastly, that the object of the amendments is obviously to rule out the Independent Union of Belgian Railwaymen, which had just become a candidate under the old rules.
13. 80. The Government makes the following observations in the matter. It first states that under the provisions of the Act of 24 May 1921 there is an absolute guarantee of freedom of association on the national railways, since any railwayman is entitled without prior authorisation to join the trade union of his choice and the Board does not interfere in the running of the organisations in question. The Government then points out that the said Act does not lay down the procedures to be followed in relations between the employer and trade unions; in that respect the National Railways Board is bound by the statutory provisions and regulations drawn up by the national joint committee under section 13 of the Act of 23 July 1926, which established the Board. In virtue of these provisions, it deals only with " recognised " organisations of personnel - i.e. organisations having seats on the national joint committee (appointed every six years, on I November); certain further privileges are granted to " approved " organisations of personnel. However, the Government continues, since the requirements for acceptance as a " recognised " and as an " approved " organisation are different, the former being less strict, it has been considered necessary to do away with this anomaly and to bring the conditions governing " recognition " into line with those governing " approval ".
14. 81. It was for that reason alone, the Government states, that the Board of Directors placed before the national joint committee a proposal that only organisations of personnel which met both the conditions already laid down in the staff regulations and those already required for acceptance as " approved " organisations should be able to compete for places on the joint committee.
15. 82. There was a debate on this whole question in the Belgian Senate on 11 December 1962, when the Ministry of Communications mentioned that the trade union provisions in the staff regulations of the National Railways Board had been the subject of an appeal to the Council of State, as well as a complaint to the I.L.O.

B. B. The Committee's conclusions

1. 83. In previous cases the Committee has followed the practice of not proceeding to examine matters which were the subject of pending judicial proceedings, provided that these proceedings were attended by proper guarantees of due process of law, where the pending judicial proceedings might make available information of assistance to the Committee in appreciating whether or not allegations were well founded.