Informe provisional - Informe núm. 241, Noviembre 1985

1. 564. The National Federation of Independent Trade Unions (UNSI) submitted a complaint of infringement of trade union rights in Belgium in a communication dated 18 June 1983. The complainant organisation sent additional information in a communication dated 13 December 1983. In addition, it sent a telegram to the Chairman of the Governing Body of the ILO during the 70th Session of the International Labour Conference on 19 June 1984. Finally, the complainant presented further allegations in a communication dated 8 November 1984.
2. 565. The Government sent very detailed information in letters dated 2 and 11 May 1984. Subsequently, in communications dated October 1984 and April 1985, it requested the Committee to adjourn examination of this case on the grounds that the decisions concerning the renewal of the terms of office of the members of the National Labour Council were due to be taken later.
3. 566. At its November 1984 meeting, the Committee on Freedom of Association decided to adjourn examination of the case, as indicated in paragraph 6 of its 236th Report, approved by the Governing Body at its 228th Session (Geneva, November 1984). Since no reply had been received from the Government, the Committee again adjourned examination of the case in February and in May 1985 (238th Report, paragraph 5 and 239th Report, paragraph 10). However, given the time which had elapsed since the complaint had been lodged, the Committee pointed out to the Government in May 1985 that it would have to examine the substance of the case at its November 1985 meeting even if no detailed reply had been received from the Government. Since then, the Government sent its observations in a communication dated 24 September 1985.
4. 567. 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. The complainant's allegations

1. 568. The National Federation of Independent Trade Unions (UNSI), in its letter of 18 June 1983, had alleged that the Government of Belgium granted powers of monopoly to "political" trade unions and was seeking to paralyse the independent union organisations. The latter therefore together had decided to form the National Federation of Independent Trade Unions in October 1982. This Federation grouped the following nine unions: (1) the Cartel of Independent Trade Unions; (2) the United Union of Finance Personnel; (3) the Belgian General Union of Sales Representatives; (4) the General Association of Flemish Trade Unions; (5) the General Federation of Teachers; (6) the National Confederation of Executive Staff (CNC); (7) the Independent General Trade Unions; (8) the National Belgian Police Union; (9) the Independent Union of Railwaymen.
2. 569. The UNSI submitted a complaint of infringement of Conventions Nos. 87 and 98 against the Government of Belgium in respect of both the public and private sectors.
3. 570. With regard to the private sector, the complainant alleged that the Government was refusing to allow its representatives to sit on the National Labour Council, and that the trade union allowances paid in this sector constituted a means of pressurising workers to induce them to join unions close to the Government since, in many cases, the allowances amount to more than half the trade union dues.
4. 571. The complainant organisation had explained that trade union life in the private sector was completely dominated by the National Labour Council since its members obtained the status of most representative organisation. They could then take part in trade union elections and joint consultations with management, pay unemployment allowances, and obtain subsidies and the right to trade union allowances for their affiliated members. Admission to the Council - which is regulated by the Act of 29 May 1952 - was subject only to two criteria: that the organisation be established at the national level and that it be inter-occupational. The complainant organisation believed that it was entitled to admission as it satisfied both requirements.
5. 572. The UNSI had stated that since the Act provided for a maximum of 24 seats on the National Labour Council and only 22 of these seats had been allocated by 25 November 1980 (as could be seen from the Royal Order of 10 November 1980), it had submitted an application to the Minister of Employment and Labour in view of the possibility of the two remaining seats being allocated by Royal Order. This application had been rejected on the grounds that the current members' term of office was due to be renewed in December 1984.
6. 573. Furthermore, according to the UNSI, the Belgian authorities were not complying with the principle established by the Committee on Freedom of Association according to which, by placing one organisation at an advantage or at a disadvantage in relation to the others, a government might either directly or indirectly influence the choice of workers regarding the organisation to which they intended to belong, since they would undeniably be inclined to join the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons. The freedom to choose was a right expressly laid down in Convention No. 87.
7. 574. According to the complainant organisation, the system of trade union allowances in the private sector was really a means of pressurising the workers since in many cases these allowances represented more than half the trade union dues. The system was thus, the UNSI maintained, contrary to the Committee's recommendations in Case No. 981, where it had drawn the Government's attention to the importance which it attached to the fact that any advantage granted by law to workers who belonged to a particular trade union must not exceed a symbolic level, so as to ensure that in no case could an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intended to belong.
8. 575. As regards the public sector, the complainant organisation recalled that, in accordance with the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities, this sector was also subject to representation on the National Labour Council. According to the complainant organisation, this Act, which had already been the subject of complaints (Cases Nos. 655and 981) was still not being applied because of the reluctance of the political trade unions to accept the system of counting. The Cartel of Independent Trade Unions of Belgium had itself, moreover, contested the system of counting.
9. 576. A Bill, No. 371, aimed at amending the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities, had been introduced. It would deprive trade unions which were not members of the National Labour Council of any possibility of belonging to the three general bargaining committees, whereas formerly this exclusion applied only to the highest committee, that is to say the Joint Committee for the Public Services as a whole.
10. 577. The UNSI considered that this Bill thus demonstrated the determination of the Belgian Government to paralyse the functioning of an independent union, contrary to an opinion previously expressed by the Committee on Freedom of Association in Case No. 655 (143rd Report, paragraph 42), in which the Committee considered that a system such as that set up by the Act of 19 December 1974 might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be excluded from the general bargaining committees on the grounds that they were not affiliated to a trade union organisation represented on the National Labour Council, a body which was not, however, competent with respect to the public sector.
11. 578. The complainant organisation had also criticised the fact that, according to official statistics on the trade union allowance in the public sector, the three unions considered to be the most representative in fact represented only about 30 per cent of the staff in this sector. Moreover, it believed that the Act of 19 December 1974 would not be applied, since the three recognised political unions would not agree to their membership being counted. Consequently, the Act of 1 September 1980 in respect of the payment of a trade union allowance by the public services would not be applied either, which meant that the relative payments would still be made in accordance with transitional provisions.
12. 579. Moreover, according to the complainant organisation, Bill No. 371 - even more than the 1974 Act - would deprive organisations which are not members of the National Labour Council of their means of action. These organisations would not have access to any of the bodies in which important decisions are taken. Furthermore, sections 16 and 17 of the Act of 19 December 1974 established a discriminatory system to the detriment of trade unions not affiliated to an organisation represented on the National Labour Council as regards the exercise of the most elementary rights in the field of freedom of association; for example, they could neither hold meetings on departmental premises, collect trade union dues during working hours, nor monitor examinations.
13. 580. In conclusion, the complainant organisation stated that no objective and clearly defined criterion was applied for the recognition of an independent trade union; recognition depended solely on the political good will of the Government - that is to say the Minister of Employment and Labour - and the Belgian Government did not wish to accept organisations that were not politically oriented. The complainant organisation regretted that the uniting of all the independent unions, from both the public and the private sector, in a federation - the UNSI - had not had the desired influence on developments in the trade union situation, although the independent unions had made a point of complying with the wishes of the Government which was willing to negotiate only with unions that are inter-occupational.
14. 581. In a subsequent communication dated 13 December 1983, the complainant organisation added that the Minister of Posts and Telecommunications decided, on 28 October 1983, to deprive the Postal Workers' Federation (POSTBOND), a trade union organisation representing the workers of this sector on the administrative council of the Post Office Social Service, of its right of representation as from 1 January 1984, replacing it by a liberal trade union which was allegedly not representative.
15. 582. Furthermore, in a communication dated 8 November 1984, the UNSI referred to measures to implement the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities which had been adopted in the Royal Order of 28 September 1984 published in the Official Gazette No. 105 (Moniteur Belge) dated 20 October 1984.
16. 583. According to the UNSI, it was clear from this text that: (1) as far as the three higher committees were concerned, only trade unions with at least one seat on the National Labour Council were entitled to participate therein. Other organisations might sit only on the sectoral or special committees, whose importance was extremely limited since major decisions concerning staff were negotiated in the three higher committees; (2) as regards the membership count, it did not appear to be mandatory inasmuch as it had to be requested by the chairman of the committee - generally the Minister.
17. 584. Furthermore, the UNSI had observed that its section representing railwaymen was unable to defend its members effectively since, under the trade union rules of the Belgian National Railway Company, only organisations represented on the National Labour Council were empowered to do so and the Minister of Employment and Labour was not prepared to grant it a seat on the Council.

B. The Government's reply

1. 585. In its communication of 2 May 1984, the Government confirmed, in respect of its refusal to allow representatives of the complainant organisation to sit on the National Labour Council, that during the first quarter of 1983, the UNSI had submitted an application to the Minister of Employment and Labour to be represented on the Council. On 5 May 1983, the general administration of the Collective Labour Relations Department of the Ministry of Employment and Labour had informed the General Secretary of the UNSI that its application to be represented on the National Labour Council was premature since the membership of the Council could not be changed before 12 December 1984, when its members' term of office was to be renewed. Moreover, in a letter of 26 September 1983 addressed to the Vice-President of the UNSI, the Minister of Employment and Labour had confirmed that the organisation's application to be represented on the National Labour Council would be considered when the membership of the Council was being renewed, the procedure for which was to begin in June 1984.
2. 586. The Government explained that section 2(2) of the Act of 29 May 1952 to establish a National Labour Council read as follows:
   • The members shall be appointed by the Crown. They shall comprise representatives in equal numbers of the most representative organisations of employers and of the most representative organisations of workers ...
   • The members representing the most representative organisations of workers shall be selected from among candidates nominated on a double list by the inter-occupational organisations federated at the national level. It also pointed out that section 5 of the same Act of 29 May 1952 provided that members of the National Labour Council were appointed for a period of four years and that the present members of the National Labour Council had been appointed by Royal Order of 10 November 1980, effective as from 12 December 1980. The renewal of their term of office was due to take place on 12 December 1984.
3. 587. The Government confirmed that only 22 seats had been allocated out of the 24 provided for in the relevant regulations; however, the two vacant seats could be allocated only in accordance with the principle of parity between delegates of employers' organisations and delegates of workers' organisations, as laid down in section 2(2) of the afore-mentioned Act of 29 May 1952. Thus, according to the Government, before allowing a workers' organisation to be represented on the National Labour Council, it was indispensable not only to investigate the representativity of that organisation but also, in view of the principle of parity on the National Labour Council and of the required balance between representatives of the two sides, to carry out a fresh study of the representativity of all the organisations of employers and the workers. The Minister of Employment and Labour had therefore rightly considered that in view of the scope of this study it should be undertaken as part of the normal procedure for the renewal of the term of office of the members of the Council. He had therefore informed the UNSI of his intention to consider this organisation's application in June 1984.
4. 588. As regards the system of trade union allowances, the Government stated that the principle and conditions underlying the granting of a trade union allowance or any other advantage to unionised workers were matters, in the private sector, for consultation and collective bargaining. There were no laws or regulations establishing principles in this respect. One or more trade union organisations might conclude, with the employers' representatives or with one particular employer, a collective labour agreement containing a clause providing for the grant of a trade union allowance only to workers who were members of the organisations which were parties to the agreement. This clause, which laid down an obligation on the employer, was the counterpart of an obligation for the signatory unions to maintain industrial peace at the level of the sector of activity or of the undertaking. The role of the public authorities in this area was extremely limited, being confined to accepting to register a collective agreement with the Collective Labour Relations Department of the Ministry of Employment and Labour, and accepting to render binding by Royal Order a collective labour agreement reached by a joint body.
5. 589. The Government disputed the argument put forward by the complainant organisation when it referred to recommendations made by the Committee on Freedom of Association in Case No. 981. According to the Government, Belgium law confers no special advantage on the workers of a particular union. The Royal Orders rendering collective labour agreements binding were submitted to the courts for verification of their legal implications and might be quashed by the Council of State. Moreover, collective labour agreements that were not rendered binding might also be challenged in the courts of law.
6. 590. The Government explained that Belgian jurisprudence had on several occasions upheld the legality of the system of advantages reserved for unionised workers or for the members of certain unions and that the judicial and administrative jurisdictions had specified the conditions in which such advantages could be considered legal. These conditions might be summarised as follows: the advantages must be in proportion to the contributions paid by the unionised workers; it was generally considered that the amount of the allowances should in no case exceed that of the contribution paid by the worker as a member of a union (that is to say, the annual dues paid by members to their organisation). The granting of advantages only to unionised workers could not undermine the rights acquired by the workers as a whole. An employer could not reserve solely for unionised workers what previously belonged to the workers as a whole. Lastly, the advantages must be the counterpart of the participation by workers belonging to the organisations which had signed the agreement, in the development of the socio-economic life of the undertaking or of the sector, and were generally granted in exchange for the expressed or tacit undertaking by the union to commit itself for a specific period to a policy of higher productivity or a policy of industrial peace.
7. 591. The Government therefore considered that the system of trade union allowances granted in compliance with conditions laid down by jurisprudence was not contrary to article 20 of the Belgian Constitution which established freedom of association, nor to the provisions of the Act of 24 May 1921 which guaranteed this freedom of association since it protected the right of the individual to join or not to join a particular association.
8. 592. The Government had recalled that the Committee on Freedom of Association had always recognised that the principle of freedom of choice did not prevent making a distinction between the most representative trade union and other trade unions or according special rights to the majority trade union, provided the distinction was made on the basis of objective criteria. According to the Government, the trade union organisations sitting on joint committees were workers' organisations which, on the basis of objective criteria laid down by Belgian law, had been recognised as the most representative in the sector concerned. It therefore followed that the criterion of representativity enabled the system of trade union allowances to satisfy one of the conditions on which Belgian jurisprudence had made the legality of this system depend, namely that the trade union allowance was a counterpart to the obligation to ensure growth of productivity or maintenance of industrial peace, since only organisations that were representative of the workers could achieve the objectives of productivity and industrial peace in any particular sector.
9. 593. In the case of the public sector, the Government, in reply to the allegation that Bill No. 371 was of such a nature as to deprive trade union organisations which were not members of the National Labour Council of any possibility of participating in the three general bargaining committees, whereas those organisations had previously been excluded only from the highest committee, i.e. the Committee for the Public Services as a whole, pointed out that Bill No. 371 had become law on 19 July 1983. It explained that the purpose of that legislation was to adopt the Act of 19 December 1974 to the new system of organisation of the State resulting from the 1980 constitutional reform and to amend provisions in respect of which certain difficulties in their implementation had become apparent.
10. 594. Consequently, section 7 of the Act of 19 December 1974 laying down the criteria for representativity of trade union organisations sitting on the general bargaining committees had been modified. The former section 7 read as follows:
    • Section 7
    • Paragraph 1. Any trade union organisation which:
11. (1) operates at the national level;
12. (2) defends the interest of all categories of public sector staff;
13. (3) is affiliated to a trade union organisation represented on the National Labour Council shall be deemed representative and hence entitled to sit on the Joint Committee for the Public Services as a whole referred to in section 3, paragraph 1, subparagraph (3). Paragraph 2. Any trade union organisation which:
14. (1) satisfies the requirements of paragraph 1;
15. (2) has a paid-up membership representing at least 10 per cent of the total staff employed in the public services referred to in section 1, paragraph 1, subparagraphs (1) and (2), to the members of whose staff the present Act has been made applicable shall be deemed representative and hence entitled to sit on the national public services committee referred to in section 3, paragraph 1, subparagraph (1).
    • Paragraph 3. Any trade union which:
16. (1) satisfies the requirements of paragraph 1; and
17. (2) has a paid-up membership representing at least 10 per cent of the total staff employed in the public services referred to section 1, paragraph 1, subparagraphs (3), (4) and (5), to the members of whose staff the present Act has been made applicable shall be deemed representative and hence entitled to sit on the provincial and local public services committee referred to in section 3, paragraph 1, subparagraph (2).
    • The new section 7 reads as follows:
    • Section 7
    • Any trade union organisation which:
18. (1) operates at the national level;
19. (2) defends the interests of all categories of public service staff;
20. (3) is affiliated to a trade union organisation represented on the National Labour Council shall be deemed representative and hence entitled to sit on the Joint Committee for the Public Services as a whole, on the national community and regional public services committees and on the provincial and local public services committees.
    • The Government explained that the representativity requirements had therefore been standardised, since a minimum number of paid-up members was no longer required for an organisation to be deemed representative and thus entitled to sit on the national, community and regional public services committees (formerly the "national public service committees"), and on the provincial and local public services committees. As a result, the conditions for access to these committees were now more easily met.
21. 595. The Government considered that there was no basis for the complainant's statement that organisations which did not belong to the National Labour Council were no longer able to sit on the three general bargaining committees, whereas previously this applied only to the Joint Committee for the Public Services as a whole, because the standardisation of the requirements had made access to the other two committees easier and because these requirements (operation at the national level, defence of the interest of all categories of public service staff, affiliation to a trade union organisation represented on the National Labour Council) had already existed in the original text of the Act of 19 December 1974 for access to the Joint Committee for the Public Services as a whole (former section 7, paragraph 1), the national public services committee (former section 7, paragraph 2, subparagraph 1) and the provincial and local public service committees (former section 7, paragraph 3, subparagraph 3).
22. 596. The Government pointed out that, since no conditions for access to the general committees had been added by the new Act, the complainant's grievance must be interpreted as referring to the three above-mentioned requirements (which existed before the entry into force of the Act of 19 July 1983 and which had been maintained in force by that Act), in particular the requirement of affiliation to a trade union organisation represented on the National Labour Council. The Government indicated that this requirement had been previously submitted to the Committee on Freedom of Association for consideration in Case No. 655 and that the Committee then noted that the Government had pointed out "that the requirement that the union must be affiliated to a trade union organisation represented on the National Labour Council to be entitled to sit on the general bargaining committees is intended to prevent precedence being given to organisations of public service employees which might tend to concern themselves purely with the interests of their own members, without taking into account those of employees as a whole, and the solidarity to be shown towards the latter" and "that in view of the multiplicity of unions in the Belgian public sector it was necessary for a selection to be made for the purposes of bargaining and consultation". According to the Government, the Committee had recommended that this selection should continue to be based on an evaluation of representativity, determined objectively, which, it stated, continued to be the practice. It refuted the allegation that the legislation criticised by the complainant showed a determination on the part of the Government to paralyse the functioning of an independent trade union, thus ignoring an earlier opinion expressed by the ILO.
23. 597. On this point, the Government considered it had been established that the new Act was primarily of a technical nature and that the amendment of section 7 of the Act of 19 December 1974 (concerning the representativity required for entitlement to sit on the general bargaining committees) had had the effect of reducing the Act's requirements by standardising them. The Government considered that there were no grounds for the allegation: (1) first, because the independent trade unions were offered the possibility of sitting on the various bargaining and consultation committees referred to in sections 3, 4 and 10 of the Act of 19 December 1974 if they met the representativity requirements set out in sections 7 and 8 of the Act. While it was true that the complainant organisation was not currently affiliated to a trade union organisation represented on the National Labour Council and therefore could not be deemed representative and hence entitled to sit on the general bargaining committees (section 7 of the Act of 19 December 1974), it was nevertheless possible for it, upon the forthcoming entry into force of the said Act, to establish that it had the largest paid-up membership of any of the trade union organisations not affiliated to a trade union organisation represented on the National Labour Council. This membership, which amounted to at least 10 per cent of the staff of the services coming under a sectoral committee or a special committee referred to in section 4 of the Act, would thus allow it to sit on these committees (section 8 of the Act); (2) second, because the Committee on Freedom of Association recognised in Case No. 655 (158th Report, paragraph 57) that "the fact that the trade union organisation was debarred from membership of joint committees did not necessarily imply infringement of the trade union rights of that organisation; but for there to be no infringement two conditions must be met". The first condition was that the question whether or not a union was sufficiently representative to sit on such bodies must be determined by objective criteria. This aspect had already been submitted for consideration to the Committee on Freedom of Association. The Government had pointed out at the time, as regards Case No. 655 (158th Report, paragraph 66) that objective and pre-determined criteria were applicable to trade unions by virtue of sections 7 and 8 of the Act. The second condition was the guarantee granted to trade union organisations deemed non-representative enabling them to further and defend the interests of their members, within the meaning of Article 10 of Convention No. 87, through the activities which they could undertake in other fields and the other rights which they enjoyed. This guarantee, which was independent of any condition of representativity, was provided by the approval arrangements set out in section 15 of the Act of 19 December 1974. An organisation obtained such approval by sending a copy of its rules and a list of its officers to the authority which, in this respect, was the body with competence in such matters. Approval conferred on the organisation concerned the prerogatives referred to in section 16 of the Act of 19 December 1974 (right to intervene with the authorities on behalf of employees, to assist an employee who has been required to justify his actions, to post notices on the premises of the department concerned and to receive documentation concerning staff administration).
24. 598. The Government also refuted the allegation that sections 16 and 17 of the Act of 19 December 1974 established a system which discriminated against trade union organisations which were not represented on the National Labour Council with respect to the exercise of the most elementary rights in the field of freedom of assocation, namely that it was impossible for the complainant to hold meetings and to collect union dues on departmental premises and to monitor examinations.
25. 599. The Government indicated that sections 16 and 17 read as follows:
    • Section 16
    • Approved trade union organisations may, under conditions laid down by the Crown:
26. (1) intercede with the authorities on behalf of all the staff whom they represent or on behalf of any individual employee;
27. (2) at his request, assist an employee summoned to justify his actions before the administrative authority;
28. (3) post notices on the premises of the department concerned;
29. (4) receive general documentation concerning the administration of the staff whom they represet.
    • Section 17
    • Under conditions laid down by the Crown and without prejudice to the other prerogatives conferred upon them by the present Act, representative trade union organisations may:
30. (1) exercise the prerogatives of approved trade union organisations;
31. (2) collect trade union dues on departmental premises during working hours;
32. (3) attend the competitive examinations and tests organised for employees, without prejudice to the prerogatives of the examiners;
33. (4) hold meetings on departmental premises.
34. 600. The Government explained that sections 16 and 17 of the Act reserved for trade union organisations prerogatives which varied according to whether the organisation concerned was approved or was deemed representative. However, this was not considered by the Government to constitute discrimination against the former type of organisation, since the Committee on Freedom of Association had recognised (158th Report, Case No. 655, para. 57) that certain advantages, especially with regard to representation, might, in certain circumstances, be accorded to trade unions by reason of the extent of their representativity. The Government contended that the withholding of certain prerogatives from trade union organisations which were not deemed representative within the meaning of the Act of 19 December 1974 must be regarded as justified.
35. 601. The Government disputed the allegation that, according to official statistics of trade union allowances paid in the public sector, the three trade unions considered the most representative represented only about 30 per cent of staff in the sector. It had pointed out that the Prime Minister himself had stated that 620,391 allowances had been paid during the reference years 1977 and 1978. It had been established that the total number of staff members to whom the Act respecting the trade union allowance was applicable was equal, for the reference years 1977 and 1978 combined, to 1,336,610 units. According to the Government, the number of staff to whom a trade union allowance had been paid represented 46.42 per cent of the total. However, this percentage (which did not correspond to that indicated by the complainant organisation), must not be regarded as representing the level of membership of the three trade union organisations deemed to be the most representative. In the first place, figures for later reference periods were not yet available and might reveal a percentage exceeding that mentioned above, owing to an amendment of the regulations concerning the trade union allowance which had had the effect of increasing the number of beneficiaries (section 4(3) of the Royal Order of 30 September 1980, introduced by Royal Order of 18 April 1982); in the second place, many employees who satisfied the legal and regulatory requirements for entitlement to this allowance had chosen not to claim it by refraining from completing the application form which had to be addressed to the payment bodies set up by the trade union organisations concerned. According to the Government, the percentage which the complainant organisation had given as corresponding to the trade union allowance was incorrect as it did not correspond to the figure communicated by the Prime Minister.
36. 602. Regarding the allegation that the three recognised political unions refused a membership count, the Government pointed out that a Royal Order to implement the Act of 19 December 1974 that would shortly come into force would have the effect of removing the transitional arrangements and instituting a comprehensive union allowance scheme.
37. 603. In a subsequent communication dated 11 May 1984, the Government stated in connection with that part of the complaint concerning the representation of the Postal Workers' Federation on the administration council of the Post Office Social Service that three appeals lodged by the Federation were before the Council of State of Belgium: a request for the repeal of section 13 of Royal Order No. 182 of 30 December 1982 respecting the restructuring of the Post Office, which provided for the creation of a supervisory body; a request for the repeal of the Ministerial Order of 30 September 1983, which provided for the establishment of a contact committee at the headquarters of each postal region and at the general and central administration of the postal service; and a request for the repeal of the Ministerial Order of 28 October 1983 approving the association referred to in the National Federation of Independent Trade Union's complaint, which was an association engaged in social assistance activities for post office staff. The Government considered that it had to await the outcome of these internal appeals before taking a stand on an international appeal.
38. 604. In its communication of 12 October 1984, the Government had requested that examination of the case be adjourned on the grounds that the decisions concerning the renewal of the terms of office of the members of the National Labour Council were due to be taken at the end of the year. It renewed its request for adjournment on several occasions, the last being in May 1985.
39. 605. Since then, the Goverment sent a reply dated 24 September 1985. It points out that the renewal of the terms of office of the members of the National Labour Council had been due in December 1984 but that some difficulties had arisen concerning distribution in the employers' group and that it was only in the month of August 1985 that the latter had been able to adopt a final stand. Under the provisions of the Royal Decree of 18 July 1985, it increased the number of members of the National Labour Council from 22 to 24, as permitted by the Act of 19 May 1952, and, by Royal Decree of 26 July 1985, it appointed eight representatives of the Federation of Belgian Enterprises, three representatives of the Higher Council of Employers in small enterprises and self-employed persons and one representative of a farmers' occupational organisation, as delegates of employers' associations, as well as six representatives of the Belgian General Federation of Labour, five representatives of the Confederation of Christian Trade Unions and one representative of the Federation of Liberal Trade Unions of Belgium as delegates of workers' associations.
40. 606. The Government states that no seat has been attributed to the National Federation of Independent Trade Unions (UNSI) because, in its view, this organisation cannot at the present time be considered as one of the most representative workers' organisations since, after examination of the documents presented by the complainant organisation, the associations which comprise it have a total of less than 100,000 members, a very large proportion of whom is in the public sector. Furthermore, it has not been shown that the number of members belonging to the private sector justifies recognition of the UNSI as a workers' organisation amongst the most representative of the private sector: some of the details concerning the number of affiliates show only 28,430 members in the private sector and UNSI does not give any information on the 23,485 members which it assigns to one of its component organisations, the Cartel of Independent Unions of Belgium. The request for further details in this respect has remained unanswered.
41. 607. The Government recalls that the 1952 legislation deliberately excluded numerical criteria concerning the representativity of workers' organisations so as not to limit the discretionary power of the Crown, as head of the executive. It therefore believes that there are no grounds for reference to section 3 of the Act of 15 December 1968 concerning collective bargaining and the committees which requires, in particular, that workers' organisations comprise approximately 50,000 members. This criterion, according to the Government, is only an absolute minimum since the sphere of action of the National Labour Council is necessarily much greater than that of a single branch of activity. It recalls that the number of affiliates is not the only criterion which should guide the choice of the Government and that according to the parliamentary proceedings of 1952, the legislation requires that an organisation be stable for it to be recognised as representative, so that it is in a position to ensure the respect of the agreements which it signs. According to the Government, since the National Union of Independent Trade Unions was established only on 9 November 1982, it has not yet been able to give proof of such stability.
42. 608. As regards the consequences of non-participation in the National Labour Council, the Government explains that in accordance with the provisions of the Act of 5 December 1968, the signing of a collective labour agreement is reserved to the representative organisations. These agreements have a binding and direct effect on third parties. This in no way means that the other organisations may not conclude collective agreements but that their effect will remain limited to only the contracting parties, in accordance with the provisions of common law.
43. 609. In the same way, the Government adds, the advantages which are accorded under collective agreements to only unionised workers may not be considered as contrary to freedom of association since they are much less than the cost of union dues given the jurisprudential rules established, in particular, by the Council of State.
44. 610. The Government furthermore constantly ensures that the advantages are related to the degree of representativity, as can be seen by the reform which the Act of 22 January 1985 introduced as regards organisations which can present candidates to the Electoral College of executive staff of the works council. Provision was made in this Act that in addition to the occupational organisations of executive staff represented in the National Labour Council, the specific organisations of executive staff with at least 10,000 members and the individual lists of executive staff supported by 10 per cent of the electors will be allowed to present candidates. This decision shows the concern of the Government to base the criteria of representativity on real situations, excluding any type of discrimination.
45. 611. As regards labour relations in the public sector, the Government states that the Act of 19 December 1974 concerning relations between the public authorities and the unions of employees coming under these authorities was recently implemented by Royal Order dated 28 September 1984 in pursuance of which certain changes were made to the labour relations system in the public sector.
46. 612. The Government admits that the UNSI is not at the present time affiliated to a trade union organisation represented on the National Labour Council and therefore cannot, for the time being, be considered as representative to sit on the general bargaining committees (section 7 of the Act of 19 December 1974). It adds that the UNSI may, however, under the provisions of section 8, paragraph 1(2), and paragraph 2(2) of the 1974 Act and sections 53-65 of the Royal Decree of 28 September 1984 implementing this Act, be considered as representative to sit on the sectoral committees and specific committees.
47. 613. The Government points out that the UNSI has, to this end, and in pursuance of section 53 of the Royal Decree of 28 September 1984, presented its candidacy in letters dated 26 and 27 December 1984 to the competent authorities, and that the latter immediately proceeded to verify whether this organisation satisfied the conditions established by the law. This examination, carried out along with that requested by other organisations seeking admission, is currently under way.
48. 614. As regards the approval arrangements contained in sections 15 and 16 of the Act of 19 December 1974 implemented by Royal Decree of 28 September 1984, the complainant organisation, like the other trade union organisations, as early as 1 December 1984, requested and obtained its approval. It exercises the prerogatives conferred upon it by section 16 of the 1974 Act and letters of official recognition have been delivered to the trade union leaders of UNSI.
49. 615. As regards the trade union allowance, the Government explains that, since the Act of 19 December 1974 was recently implemented by the Royal Decree of 28 September 1984, the non-implementation of the Act of 19 December 1974 to which UNSI referred will no longer constitute an obstacle to the comprehensive application of the Act on the trade union allowance. Such a comprehensive union allowance scheme presupposes, however, that the trade union organisations considered as representative to sit on the sectoral committees and the specific committees for which provision is made in this Act should be determined beforehand by a membership count. The results of this count will be available only during the course of 1985. It is for this reason that the Act of 22 January 1985 extended the transitory application of the Act respecting the trade union allowance for the reference years 1983, 1984 and 1985; this extension does not compromise the rights of the UNSI. If its representativity is established in 1985, it will be able to benefit from the system of the trade union allowance from 1986.
50. 616. As regards the representativity of the UNSI - in the public sector, in the bargaining committees established by or under the Act of 19 December 1974 - an examination of this representativity is under way: it was decided on 13 May 1985, as regards the general bargaining committees (section 7 of the 1974 Act) that, since the complainant organisation is not affiliated to a trade union organisation represented on the National Labour Council, it is not considered as representative to sit on the general bargaining committees and, as regards the sectoral committees (section 8 of the 1974 Act), that UNSI satisfies the requirements of representativity to present its candidacy.
51. 617. An examination of the criteria of representativity is thus now being carried out by an independent commission enjoying autonomous decision-making powers and composed of three judicial magistrates. The purpose of this examination is to verify whether the UNSI has a sufficient number of paid-up members to be considered as representative to sit on the different sectoral committees to which the complainant organisation has requested admission. The results are expected before the end of 1985; the work involves the examination and comparison of staff lists and paid-up membership lists of the trade union organisations.
52. 618. In conclusion, the Belgian Government believes that it has satisfied the request of the UNSI as regards the examination the conditions of representativity and has done everything possible to ensure that this examination is carried out in conditions which respect freedom of association, by entrusting the examination to an autonomous commission composed of independent magistrates and ensuring that the criteria established do not infringe the rights of trade union organisations.

C. The Committee's conclusions

1. 619. This complaint, presented by a trade union federation organised at the inter-occupational and national level and which claims to be representative, concerns the difficulties it is encountering in its efforts to gain a seat on the National Labour Council. It also deals with the obstacles to its normal functioning and the discriminatory treatment that results from its inability to take part in the work of the Council.
2. 620. At the Government's request, the Committee adjourned examination of this case in November 1984 and in February and May 1985.
3. 621. Before giving any opinion on the issues involved in this case, certain aspects of which have already been raised in connection with a number of similar cases brought before the Committee on Freedom of Association (69th and 93rd Reports, Case No. 281 (Belgium); 92nd Report, Case No. 376 (Belgium); 130th, 143rd and 158th Reports, Case No. 655 (Belgium); 197th Report, Case No. 918 (Belgium); 208th Report, Case No. 981 (Belgium)), the Committee believes that they should be looked at in the framework of its past observations on the question of trade union representativity.
4. 622. In general terms, the Committee has recognised that certain advantages might be accorded to trade unions by reason of the extent of their representativity, but has taken the view that the intervention of the public authorities with regard to advantages should not be of such a nature as to influence unduly the choice of the workers in respect of the organisation to which they wish to belong. The Committee has also taken the view that the fact that a trade union organisation is debarred from membership of joint committees does not necessarily imply an infringement of the trade union rights of that organisation, provided two conditions are met: first, the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively "to further and defend the interests" of its members within the meaning of Article 10 of the Freedom of Association and the Protection of the Right to Organise Convention, 1948 (No. 87) (see 143rd Report, Case No. 655 (Belgium), para. 40.)
5. 623. Regarding the system resulting from the legislation in force in Belgium, the Committee of Experts on the Application of Conventions and Recommendations has for a number of years made comments on the provisions which require occupational organisations to be represented on the National Labour Council (on which only inter-occcupational organisations that are federated at the national level may sit (Act of 29 May 1952)), in order to be considered as representative, both in the private sector (Act of 5 December 1968) and in the public sector (Act of 19 December 1974), so as to be able to sit on joint committees in the private sector or take part in the work of the general bargaining committees in the public sector.
6. 624. Both the Committee of Experts and the Committee on Freedom of Association (see 143rd Report, Case No. 655, para. 42) have considered that such legislation might mean that even the most representative trade union in a particular branch might be excluded from taking part in collective bargaining for its sector. Both have requested the Government to re-examine the above-mentioned provisions of the Acts of 1968 and 1974 and to provide information on developments in the matter.
7. 625. In the present case, the complainant challenges the Government's refusal to grant it access to the National Labour Council, which results in it being unable to take part in trade union elections and in joint consultations in the private sector, to pay employment allowances and to receive subsidies. The organisation also complains of discriminatory treatment, which derives from the fact that workers in the private sector are paid trade union allowances which the complainant claims are too high and act as a real means of inducing the workers to join unions that are close to the Government. The complainant also refers to the impossibility of taking part in the work of the general bargaining committees in the public sector, following an amendment to the Act of 19 December 1974 introduced by an Act of 19 July 1983, whereas previously, according to the complainant, union organisations not represented on the National Labour Council were debarred only from the highest committee. The complainant criticises the discriminatory treatment that results from the non-participation of the public sector union organisations in the National Labour Council by virtue of sections 16 and 17 of the Act of 19 December 1974 (concerning the holding of meetings, the collection of union dues on departmental premises and the monitoring of examinations), the alleged refusal of the three trade unions deemed by the public authorities to be the most representative to accept a membership count whereas they allegedly represent only 30 per cent of the staff in the public sector, and the unilateral decision of the Minister of Posts and Telecommunications which allegedly has led to the replacement of the representative Postal Workers' Federation by a liberal union which is not representative.
8. 626. Regarding the Government's alleged refusal to grant the complainant organisation access to the National Labour Council when two seats on the Council have been vacant since November 1980, the Committee notes the Government's statement that the organisation's request was examined when the term of office of the members of the Council was renewed in August 1985. The Committee regrets this delay since, as the Government admits, the complainant organisation submitted its request during the first quarter of 1983.
9. 627. As regards the representativity criteria laid down in Belgian legislation, the Committee observes that according to section 2(2) of the Act of 29 May 1952, the Crown is empowered to appoint the members of the National Labour Council selected from among the most representative inter-occupational organisations federated at the national level. The Committee also notes that, in connection with Case No. 918, the Belgian Government cited among the criteria of representativity other than those contained in the 1952 Act, section 3 of the Act of 5 December 1968, which reads as follows:
   • ... The following shall be deemed to be representative workers' organisations and representative employers' organisations:
10. (1) Inter-occupational organisations of workers and employers established at the national level and represented on the Central Economic Council and the National Labour Council; the workers' organisations shall furthermore have at least 50,000 members ... (197th Report, para. 147.)
11. 628. In the said case, the Committee considered that the minimum 50,000 members as a qualification for entitlement to sit on the National Labour Council was not excessive, in so far as trade union organisations covered all categories of workers and not a single category. (197th Report, Case No. 918, para. 162.)
12. 629. The Committee observes that the quantitative criterion of 50,000 members was not applied in the present case. If this minimum had been applied, the Committee would have considered that it was not excessive.
13. 630. In the present case the Committee notes that the Government merely points out that no seat was attributed to the UNSI because its member organisations taken together have a total of less than l00,000 members, a large number of whom belong to the public sector and it adds that the legislation stipulates that an organisation, in order to be a member of the National Labour Council, must be in a position to ensure the observance of the agreements which it signs, and that in the view of the Government this is not the case as regards the UNSI which was created only on 9 November 1982 and which has not yet given proof of its stability.
14. 631. The Committee also observes that six seats were allocated to the Belgian General Federation of Labour, five to the Confederation of Christian Trade Unions and one to the Federation of Liberal Trade Unions of Belgium.
15. 632. Since the refusal to grant a seat to the UNSI on the National Labour Council makes it impossible for that union to sit on the general negotiating committees for the public service, the Committee requests the Government to indicate the objective elements which formed the basis for its refusal to allocate a seat to the UNSI in order to enable the Committee to reach a decision based on a full knowledge of the facts.
16. 633. With regard to the obstacles to the normal functioning of the complainant organisation as a result of its non-participation in the National Labour Council, which it claims makes it impossible for it to take part in trade union elections and joint consultation machinery, to pay unemployment allowances and obtain subsidies, the Committee notes that in its reply of 24 September 1985, the Government states that whilst the collective labour agreement under the Act of 5 December 1968 is reserved to representative organisations, that is those represented on the National Labour Council, and has a binding and direct effect with regard to third parties, this does not prevent the other organisations from concluding collective agreements though these will remain limited in effect to only their signatories. The Government does not provide any comments concerning trade union elections, the payment of unemployment allowances and the obtaining of subsidies.
17. 634. On this point, the Committee recalls that although it has recognised that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativity, the reason for which a union is deprived of such advantages must lie in its non-representative character.
18. 635. As regards the alleged discrimination deriving from the fact that workers in the private sector are paid union allowances which the complainant organisation considers too high and claims are a real means of inducing workers to join certain trade unions, since in many cases the allowance is more than 50 per cent of union dues, the Committee observes that the Government maintains that the principle and conditions underlying the granting of the allowance in the private sector are matters for consultation and negotiation between the parties and therefore are considered as trade union security clauses. The Government recognises that the public authorities are involved but states that their role is confined to agreeing to register a collective agreement and to render binding by Royal Order a collective agreement reached by a joint body.
19. 636. The Committee also notes the Government's explanations that the Royal Orders making collective agreements binding and thereby securing advantages for the members of certain trade unions are examined as to their legality by the courts and that the said advantages must be proportional to the contributions paid by the unionised workers - that is to say that they may not exceed the annual dues paid by members of their organisations. The Committee also notes that in its reply of 24 September 1985, the Government states that the advantages provided by collective agreements to only the unionised workers are considerably below the cost of trade union membership given the jurisprudential rules established by the Council of State. The Committee observes, however, that the effect of the system of extension of the trade union security clauses contained in collective agreements is to render them applicable to persons who have not participated or who have not been represented in the process of negotiation. The securing of advantages thus takes on a different aspect in as much as it is no longer applicable solely to the parties to a collective agreement.
20. 637. Consequently, the Committee cannot but reiterate its earlier conclusions and draw the Government's attention to the importance which it attaches to the fact that any advantage granted by the law to workers who belong to a particular trade union must not exceed a genuinely symbolic level, so as to ensure that in no case can an advantage be of such a nature as to influence unduly the workers' choice as regards the organisation to which they intend to belong. (See 92nd Report, Case No. 376 (Belgium), para. 39, and 208th Report, Case No. 981 (Belgium), para. 117.)
21. 638. The complainant claims that, in the public sector, the effect of the Act of 19 July 1983 amending the Act of 19 December 1974 concerning relations between the public authorities and trade unions of personnel employed by these authorities is to deprive trade union organisations with no seat on the National Labour Council of any possibility of participating in the three general bargaining committees whereas, previously, they were debarred only from the highest committee. According to the complainant, this Act ignores an opinion expressed in the past by the Committee of Freedom of Association in connection with Case No. 655 in which the Committee had criticised the Belgian system on the grounds that it might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be excluded from the general bargaining committees on the grounds that they were not affiliated to a trade union organisation represented on the National Labour Council, a body which would not, however, be competent with respect to the public sector.
22. 639. The Committee notes the Government's explanation that the new Act does not modify the situation obtaining under the 1974 Act since it is intended solely to facilitate access to the general committees by removing the requirement of a minimum number of members (10 per cent) for entitlement to participate in them. The Committee observes, nevertheless, that the new Act maintains the requirement for an organisation to be affiliated to an inter-occupational organisation represented on the National Labour Council in order to be able to sit on both the Joint Committee for the Public Services as a whole and on the national, provincial and local public services committees (section 7, paragraph 3 of the 1974 Act, as amended on 19 July 1983). Furthermore, the Government in its reply of 24 September 1985, points out that the UNSI may not sit on the general bargaining committees and that it may sit only on the sectoral and specific committees.
23. 640. The Committee therefore considers that, even though in putting forward its case the complainant may have been mistaken in indicating that, in future, organisations not represented on the National Labour Council would be debarred from the three general bargaining committees whereas in the past they were debarred only from the highest committee, the fact remains that the provisions of the Act of 19 December 1974, as amended by the Act of 19 July 1983, and which came into force by virtue of the Royal Order of 28 September 1984, do not meet all the criteria suggested by the Committee with regard to trade union representativity. The legislation still requires an organisation to be affiliated to an inter-occupational organisation represented on the National Labour Council in order to have a seat on the Joint Committee for the Public Services as a whole and on the national, provincial and local public services committees (section 7, paragraph 3, of the 1974 Act as amended by the 1983 Act) and in order to be involved in the collective bargaining procedure (section 6 of the 1974 Act). The amendment introduced by the Act of 19 July 1983 which removes the requirement of the minimum number of 10 per cent does not alter the situation on which the Committee of Experts on the Application of Conventions and Recommendations has been making observations for several years.
24. 641. The Committee, accordingly, invites the Government to amend its legislation since it could result in public sector organisations - which do not sit on the National Labour Council if they are not inter-occuptional or are not affiliated to an inter-occupational organisation established at the national level - being deprived of the right to bargain collectively in defence of the occupational interests of their members in the general bargaining committees, not only at the national but also provincial or local levels, even though they might be sufficiently representative. The new Act of 19 July 1983, as the Government itself recognises, actually grants organisations not represented on the National Labour Council no new right. It merely confirms the right to which the organisations are entitled, namely, the right to sit on specific or sectoral committees whose terms of reference are restricted to issues affecting the staff of the services for which they have been created, to the exclusion of issues that are the subject of negotiations in one of the general national, provincial or local public services committees or in the Joint Committee for the Public Services as a whole (section 4(3) and section 8 of the 1974 Act).
25. 642. Furthermore, the Committee notes with interest that the UNSI obtained its approval by a decision of 1 December 1984 and that it has been authorised to request a seat on the specific or sectoral bargaining committees by a decision of 13 May 1985. As regards this last point, the Committee also notes with interest that the examination of the representativity of trade union organisations which seek to sit on the specific or sectoral bargaining committees has been entrusted to an independent commission composed of three judicial magistrates. The Committee believes that this development is positive. It requests the Government to state whether in fact the UNSI has been admitted to sit on the specific or sectoral committees and, if this is the case, on which committees. It would also like to know the scope and compass of collective bargaining in the specific and sectoral committees.
26. 643. Regarding the alleged discrimination resulting from the non-participation of the public sector trade union organisations in the National Labour Council by virtue of sections 16 and 17 of the Act of 19 December 1974 (concerning the holding of meetings, the collection of union dues on departmental premises and monitoring of examinations), the Committee notes the Government's explanations with respect to the prerogatives that are reserved for union organisations deemed to be representative.
27. 644. On this point, the Committee considers, however, that it can only reiterate the conclusions it reached in its examination of the previous allegation since the system established by the 1974 Act, as amended in July 1983, might mean that sufficiently representative organisations, and even the most representative organisation, in the public sector might be denied the right to hold meetings and to collect union dues on departmental premises not because they are unrepresentative but because they are not representative within the meaning of the Act of 19 December 1974 as amended - in other words, that they are not represented on the National Labour Council.
28. 645. Concerning the complainant organisation's challenge to the degree of representativity of the three trade unions considered by the public authorities as being the most representative and the alleged refusal of these unions to agree to a membership count, the Committee notes the comments of the Government on these various points. In particular, it notes that the Government challenges the figures given for the percentage paid in the form of a trade union allowance, that it points out that the complainant does not hold it responsible for the non-observance of the 1974 Act and that it accuses the trade unions concerned of refusing a membership count.
29. 646. The Committee considers that it is the responsibility of the Government to conduct an objective verification of the representativity of occupational organisations when this is challenged. It recalls that occupational organisations must be able to assert their right by means of a majority vote of the workers or any other system of counting their members accepted by them and must be able to demand a new election or recount of their membership after a given period of time should they fail to demonstrate their representative character. It would appear from the Royal Order of 28 September 1984 to implement the 1974 Act that provision does exist for a membership count, but that the verification of representativity takes place at the initiative of the chairmen of the bargaining committees (sections 53 to 56). The supervision of the criteria of representativity, on the other hand, lies with a commission composed of judges (sections 58 to 70).
30. 647. As to the representation of the post and telecommunications staff, the Committee notes that appeals have been brought before the courts. The Committee trusts that the principles concerning the verification of the representativity of occupational organisations will be respected and requests the Government to inform it of the outcome of the appeals lodged by the parties concerned.