Rapport définitif - Rapport No. 93, 1967

1. 54. This case was first examined by the Committee at its 33rd Session, held in February 1963. On that occasion the Committee presented the Governing Body with an interim report which is contained in paragraphs 66 to 84 of the Committee's 69th Report, adopted by the Governing Body at its 155th Session (May-June 1963). Considering the case again at its 37th Session, held in June 1964, the Committee drew up its definitive conclusions on the subject, which are given in paragraphs 17 to 29 of the Committee's 76th Report, approved by the Governing Body at its 159th Session (June-July 1964).
2. 55. When the 37th Session of the Committee came to an end, the case was therefore considered by the latter to be concluded. However, two of the complainants subsequently provided supplementary information bringing up new points, so the text of these communications was forwarded to the Government for observations. The supplementary information was provided in two communications dated 24 June and 6 November 1964 from the Cartel of Independent Trade Unions for the Public Services and a communication dated 30 October 1964 from the European Confederation of Autonomous Trade Unions of Railwaymen. The Government submitted its observations thereon in a communication dated 10 August 1965.

A. A. The complainants' allegations

1. 56. The various points at issue should perhaps be briefly recalled. The essence of the complainants' allegations was that the Independent Union of Belgian Railwaymen (U.I.C.B.) was subjected to discriminatory treatment in that, having failed to gain recognition, it was not a member of the Joint National Committee, and, not being a member of that Committee, was not in a position to further and defend the interests of its members as it should. The complainants further alleged that new rules which had been introduced into the Trade Union Statute, altering the conditions of eligibility for the Joint National Committee, had the object and effect of excluding U.I.C.B once and for all from representation on the Committee.
2. 57. At its February 1963 session, having noted that an appeal had been lodged with the Council of State against the decision taken by the Executive Council of the Belgian National Railway Company amending section 7 of Chapter XIII of the Staff Regulations and thus debarring U.I.C.B from eligibility for the Joint National Committee, the Committee requested the text of the Council of State's decision.
3. 58. The Committee had this text before it at its June 1964 session, together with the opinion on the matter given at the hearing by the substitute for the Central Claims Officer. It noted that reference was made to the fact that the existence of a joint committee is a safeguard afforded to the employees by the law, and it is to the employees' interest that the said committee should be composed in the manner prescribed by law; it noted, moreover, that reference was made to the fact that a substantial number of employees belonged to U.I.C.B, and that before the disputed amendment to the regulations was made it had a chance of success in obtaining seats on the Joint National Committee.
4. 59. In the light of the texts referred to above, the Committee noted that section 13 of the Act of 23 July 1926 establishing the Belgian National Railway Company laid down that provision should be made in the Staff Regulations for a joint committee of 20 members appointed by the Executive Council and by staff organisations. The Committee also noted that in the view of the Council of State, while it was the responsibility of the authority vested with the power of framing the Company's regulations to issue rules to ensure the observance of the law, the said authority could not add to the law a condition which was not necessarily derived from the law, was not an essential prerequisite for its enforcement and had the effect of substantially altering a rule laid down by the legislators. The Committee noted that the Council of State considered that a provision which added to the requirement laid down by law that only organisations of members of the staff of the Belgian National Railway Company might have seats on the Joint National Committee the requirement that such organisations must be affiliated to a national inter-occupational organisation recognised by the National Labour Council and the Central Economic Council and represented on these bodies, fell under this heading. The Committee noted that in the view of the Council of State no justification for such a condition could be found either in the Act of 23 July 1926 establishing the Belgian National Railway Company, in the Act of 29 May 1952 setting up the National Labour Council or in the Act of 20 September 1948 making provision for the organisation of the economy.
5. 60. The Committee noted that for these reasons the Council of State, " considering that section 13 of the Act of 23 July 1926 does no more than provide for the existence of a national joint committee half of whose members must be appointed by the organisations of members of the staff"; " that, according to the rule laid down by the legislators, seats on the Joint Committee should be allocated to persons nominated by the organisations of members of the staff, irrespective of whether the said organisations are affiliated to the inter-occupational organisations considered to be the most representative of Belgian workers as a whole "; " that in consequence the decision impugned has misinterpreted the provisions of the Act of 23 July 1926 "; and that the authorities had overstepped their powers, decided to declare null and void " the decision taken on 29 June 1962 by the Executive Council of the Belgian National Railway Company to amend section 7 of Chapter XIII of the Staff Regulations ".
6. 61. The Committee, at its June 1964 session, noted that the result of the order of nullification issued by the Council of State was that the situation as regards candidature for seats on the Joint National Committee had reverted back to the status quo ante, and that it was therefore permissible to assume that, provided that the Independent Union of Belgian Railwaymen still fulfilled the necessary qualifications - i.e. that its membership should amount to at least 10 per cent of the staff in active employment - there was no longer any obstacle in the way of its being given, in proportion to its size, the representation it sought on the Joint Committee. In these circumstances the Committee recommended the Governing Body to decide that the case did not call for further examination. This recommendation was approved by the Governing Body.
7. 62. The Cartel of Independent Trade Unions for the Public Services, however, made the following statements in a communication dated 24 June 1964. They alleged that, more than six months after the nullification by the Council of State of the disputed decision, no steps had been taken to re-establish legality. The nullified measure had not been officially withdrawn and was, therefore, still in force from an administrative point of view. The complainants further alleged that the Belgian Government and the Belgian National Railway Company had done nothing to re-establish the previous ruling; on the contrary, means were being sought to introduce fresh rules.
8. 63. In a communication dated 30 October 1964 the European Confederation of Autonomous Trade Unions of Railwaymen confirmed the statements referred to in the foregoing paragraph. An affidavit was also enclosed, stating that a petition addressed to His Majesty the King of the Belgians with a view to obtaining implementation of the Council of State's decree had had about 10,000 signatures. The complainants further stated that the Belgian National Railway Company employed some 60,000 staff, and that these signatures were, therefore, well in excess of the 10 per cent quorum.
9. 64. Lastly, in a communication dated 6 November 1964, the Cartel of Independent Trade Unions for the Public Services quoted an article which had appeared in the 30 October 1964 issue of the newspaper La libre Belgique, under the title " Trade Union Monopoly in the Belgian National Railways ", which contained the following passage:
   • Finally, as regards trade union status, the agreement specifies that legal provisions shall be laid down in respect of trade union representation in the Belgian National Railway Company.
   • Asked about measures taken in this context, the Minister of the Interior and Public Services refused to admit that any attempt is being made to debar the Cartel of Independent Trade Unions from the Belgian National Railways Joint Committee. Substantial numbers of the Company's staff (more than 10 per cent of the staff as a whole) do, in fact, belong to that union. In view of the fact that a decision recently taken to this effect by the Minister of Communications was quashed by the Council of State on procedural grounds, and that the substance of the matter was referred to the International Labour Office, the Government is evidently seeking to forestall the blow and to enlist the complicity of the legislators in setting up a monopolistic " Common Front " between the two big trade union organisations within the Belgian National Railways Company. This, obviously, is inadmissible.
10. 65. The communications referred to in the three foregoing paragraphs were forwarded to the Government for its observations. The Government replied in a letter dated 10 August 1965, and in a further communication received on 12 April 1966.
11. 66. In its reply the Government stated that the matter raised by the complainants had just been examined by the Belgian National Railway Company in the context of the provisions of the Act of 21 April 1965. The Government further stated that the said Act, amending section 13 of the Act of 23 July 1926 establishing the Belgian National Railway Company, empowers the Joint National Committee to specify the criteria for judging the representative character of staff organisations, both within the Company itself and at national and inter-occupational level, for eligibility to compete for the seats allocated to them.
12. 67. The Government also stated that the Act of 21 April 1965 extended the term of office of the current Joint National Committee for a period of not more than two years after the entry into force of the said Act.
13. 68. The Government concluded by stating that the competent bodies of the Belgian National Railway Company were " at present engaged in examining the matter with a view to specifying the necessary measures entailed by the new situation ".
14. 69. Reference to the text of the Act of 21 April 1965 mentioned by the Government shows that ten out of the 20 members of the Belgian National Railway Company Joint National Committee are to be appointed by the Belgian National Railway Company Executive Council, the remaining ten members to be appointed, " in the manner laid down by the Regulations, by the staff organisations which, according to the criteria set out in the Regulations, are considered the most representative of the staff as a whole, both within the Company itself and at the national and inter-occupational levels ".
15. 70. The last-mentioned requirement - that organisations shall be representative not only within the Company itself but also at national and inter-occupational levels - would seem to be justifiable in the case of a joint national committee whose sphere of activity extended to the economy as a whole; but it hardly seems necessary in the case of a joint national committee whose functions are limited to a particular branch of activity or a particular sector, having regard to the objective which should logically be pursued - i.e. that of determining within the Belgian National Railway Company itself which organisations are the most representative of the Company staff.
16. 71. It is true that to debar a trade union organisation from membership of joint committees does not necessarily imply infringement of that organisation's right to organise. But for there to be no infringement, two conditions must be met: first, that 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; secondly, that 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 Protection of the Right to Organise Convention, 1948 (No. 87), which Belgium has ratified.
17. 72. The Committee also observes that the Government's reply shows that, subject to the conditions previously laid down by the Act, it was the responsibility of the Belgian National Railway Company Joint National Committee itself to specify criteria for judging the representative character of staff organisations in competing for the seats allocated to them.
18. 73. In its communication received on 12 April 1966 the Government informed the Committee that the Belgian National Railway Company Joint National Committee had made use of the powers vested in it by the Act of 21 April 1965 to lay down criteria for judging the representative character of staff organisations in competing for the seats allocated to them. These criteria are as follows:
    • Organisations shall ...
19. (1) on the first day of the eighteenth month preceding the appointed date for re-election of the Joint Committee, have a membership of individually contributing members amounting to at least 10 per cent of the total on that date of the established employees of the Company in active service;
20. (2) not later than the first day of the sixteenth month preceding the date for re-election of the Joint Committee, submit their application, deposit at the office of the Director of Personnel and Social Services two copies of their rules, indicating at the same time the names of their responsible leaders and appointed delegates, declare the number of contributing members as prescribed in clause 1 above, and furnish evidence that they satisfy the criteria laid down in section 6;
21. (3) allow their membership figures to be checked at any time during the four months following the appointed date for depositing their rules.
22. 74. Apart from the last phrase of the sentence in clause 2 - "and furnish evidence that they satisfy the criteria laid down in section 6 "-which refers precisely to the requirement laid down by the Act that they shall be affiliated to a national inter-occupational organisation, in respect of which reference should be made to the comments in paragraphs 70 and 71 above, the conditions specified in the event by the Belgian National Railway Company Joint National Committee do not appear to give rise to criticism.
23. 75. Some doubts may, however, be felt as regards a system by which the members of a joint committee are themselves vested with the power to determine the conditions for becoming a member of that committee.