Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

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

Autre commentaire sur C098

Observation

1989

Demande directe

Réponses reçues aux questions soulevées dans une demande directe qui ne donnent pas lieu à d’autres commentaires

2016

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The Committee notes the observations of the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB), dated 1 September 2022 and 31 August 2023, which concern issues examined in the present comment, as well as the Government’s reply in this regard. The Committee also notes the Government’s communication in reply to the questions raised by the trade union organizations regarding the COVID-19 health crisis.

Article 4. Right to collective bargaining. Wage fixing. In its previous comments, the Committee noted the observations of the above-mentioned trade union organizations, which considered that the provisions of the Act of 26 July 1996 on employment promotion and the preventive maintenance of competitiveness, as amended by the Act of 19 March 2017, resulted in the unilateral fixing of a maximum wage band that severely limited the social partners’ possibilities to collectively bargain wage increases.

The Committee notes that, since its last comment, a complaint on this subject has been presented to the Committee on Freedom of Association by the above-mentioned trade union organizations (Case No. 3415). In this connection, the Committee notes that the Committee noted: (i) that the Government recognized the existence of limits on the freedom to negotiate of the social partners with regard to wage increases, in particular the obligation to respect the maximum margin calculated at the beginning of the process by the Central Economic Council (CCE) secretariat; and (ii) that the elements described indicate the existence of a significative restriction of the ability of the social partners to autonomously negotiate wage levels in the private sector. In its recommendation, the Committee requested the Government to take, in full consultation with the social partners, the necessary steps to ensure that the social partners are able to freely determine the criteria on which to base their negotiations on wage increases at the intersectoral level, and the results of those negotiations (paragraph 149). Noting the Government’s indication that the Minister of Labour has requested an opinion from the CCE, inviting the social partners to enter into consultations on how to implement the recommendation of the Committee on Freedom of Association, and to adapt legislation, the Committee requests the Government to provide information on the discussions undertaken, as well as on any legislative developments to give effect to the recommendations of the Committee on Freedom of Association.

Harmonization of the joint committees and workers in the platform economy. In its previous comments, the Committee noted the allegations of the above-mentioned trade union organizations 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. The Committee noted 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. It also noted that Judgment No. 2020/53 of the Constitutional Court of 23 April 2020, which explains that the 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. The Committee requested 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 also invited the Government: (i) 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; and (ii) to provide information on any progress achieved in this regard and on any legislative measures adopted or contemplated further to the Constitutional Court decision. The Committee notes that the Government reports that, in order to facilitate the correct determination of the status of platform workers and to ensure that such workers are not subject to a status that does not reflect the real nature of the employment relationship, Belgium has adopted new legal measures: chapter 4 of the Act of 3 October 2022 containing various labour-related provisions provides for a rebuttable presumption of work under the status of employed worker when certain criteria relating to the employment relationship, between a digital platform giving orders and a worker, are met. According to the Government, the adoption of this new presumption should lead to wider recognition of the status of employed workers among platform workers and, consequently, to their representation in the negotiation of collective agreements as provided for by the Act of 5 December 1968. The Committee notes that the trade union organizations regret that the debate is focusing on the distinction between self-employed and employed workers. In their view, the majority of platform workers currently work outside any form of status, so it seems highly unlikely that they will be able to benefit from collective bargaining. Noting the information provided by the Government and the trade union organizations, the Committee requests the Government to provide information on the effects in practice of chapter 4 of the Act of 3 October 2022 containing various labour-related provisions on the possibility for platform workers to exercise their collective rights. Emphasizing once again the importance of consultations 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 any information on the progress achieved in this regard.

Taking trade union organizations to court for non-compliance with collective bargaining commitments. The Committee took note of the observations of the Federation of Enterprises in Belgium (FEB) and the International Organisation of Employers (IOE), which considered 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 noted a divergence between the views of the employers’ organizations mentioned above and those of the Government in cases of non-compliance with commitments entered into under a collective agreement, in terms of the possibility of bringing trade unions before the courts in cases of violation of commitments undertaken in collective agreements, and requested the Government to make any useful comments on the impact of the current situation on the effective implementation of collective agreements. The Committee notes that the Government reiterates its comments on “functional” legal personality as set out in section 4 of the Act of 5 December 1968. The Government specifies that: (i) de facto associations, whether trade unions, employers’ organizations or political parties, cannot be forced to acquire legal personality, as the Conseil d’Etat recalled in its opinion no. 70. 264/VR of 3 December 2021: freedom of association confers the right to request and obtain legal personality, but also the right not to request it; (ii) the fact that trade unions do not have legal personality does not, however, mean that they avoid their responsibilities as de facto associations; although legal action is not admissible against a representative organization lacking legal personality, action may be taken against the leaders of a de facto association; (iii) Belgian labour law establishes other mechanisms aimed at ensuring compliance with collective agreements by organizations and their members (for example, through the obligation of the contracting parties to promote compliance with the collective agreement among their members, or the commitment of the contracting parties to comply with the provisions of the collective agreement and thus guarantee social peace); and (iv) employers and their organizations not only have the possibility of stipulating an obligation of social peace, but may also stipulate damages from trade unions in the event of a violation of the obligations arising from an agreement under section 4(2) of the Act on Collective Bargaining. The Committee notes that the trade union organizations, in their observations, endorse the information provided by the Government on this issue, which attests to the multitude of existing mechanisms for ensuring compliance with collective agreements. The Committee takes note of this information.