Rapport définitif - Rapport No. 76, 1964

1. 17. This case has already been examined by the Committee at its 33rd Session, held in Geneva in February 1963. At that time the Committee submitted to the Governing Body an interim report which may be found in paragraphs 66 to 84 of the 69th Report of the Committee, adopted by the Governing Body on 1 June 1963, during its 155th Session.

A. A. The complainants' allegations

1. 18. It may be desirable to review briefly the features of the case. The essence of the complainants' allegations is that the Independent Union of Belgian Railwaymen (U.I.C.B.) has been subjected to discriminatory treatment in that, having failed to obtain recognition, it has no seat on the National Joint Committee and that, having no seat on this Committee, it is not in a position to further and defend the interests of its members as it should. The complainants further allege that new provisions added to the Trade Union Agreement which alter the conditions of eligibility for the Joint Committee are designed to exclude the U.I.C.B once and for all from representation on the Committee.
2. 19. At its February 1963 session, having noted that an appeal had been lodged with the Council of State against the amendment to the Trade Union Agreement of the Belgian National Railway Company, the Committee, in accordance with its usual practice, decided to request the Government to furnish the text of the decision of the Council of State as soon as it was announced, and in the meantime to adjourn examination of the case.
3. 20. The Committee's decision, after ratification by the Governing Body, was made known to the Government, which replied by a communication dated 13 April 1964.
4. 21. The main part of the Government's reply consisted of the text of the decision of the Council of State, together with the reasons therefor - a copy of which was also furnished by the complainants-in the matter of the appeal lodged against the decision taken by the Executive Council of the Belgian National Railway Company to amend section 7 of Chapter XIII of the Staff Regulations, the effect of which was to debar the Independent Union of Belgian Railwaymen from participating in the allocation of seats on the National Joint Committee. The complainants, for their part, also forwarded with their communication of 26 January 1964 the text of the opinion on the matter given at the hearing by the substitute for the Central Claims Officer.
5. 22. In his review of the case the substitute for the Central Claims Officer made, inter alia, the following comments : "The existence of a joint committee is a safeguard afforded to the employees by the law, and it is in the employees' interest that the said committee should be composed in the manner prescribed by the law.... A substantial number of employees belong to the Independent Union, and before the disputed amendment to the regulations was made it had chances of success in obtaining seats on the National Joint Committee."
6. 23. The substitute for the Central Claims Officer went on to state 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 Governing Body and by the organisations of members of the staff. To comply with this provision, the authorities framing the Staff Regulations must issue rules for the determination of which organisations fall into this category.... These rules should enable it to be determined which organisations are representative of the members of the staff of the company.... The question to be answered is whether the criterion evoked is an adequate one, and whether it is thereby possible to determine which organisations are representative of railway employees."
7. 24. On this point the substitute for the Central Claims Officer expressed himself in these terms : " The condition impugned consists, first of all, in the requirement that organisations be affiliated to a national interoccupational organisation with 50,000 members. One cannot see what relevance this requirement has to the stated objective, which is to determine which organisations represent the employees of the Belgian National Railway Company. The fact of the matter is that an organisation of members of the staff within the meaning of the Act of 23 July 1926 must have as members employees of the Belgian National Railway Company. The act does not require nor imply that the said organisation must be interoccupational.... Hence the criterion evoked represents a deviation from the objective which should be pursued, and adds to the law a rule which is not in conformity with the law."
8. 25. The substitute for the Central Claims Officer went on to state that " the second requirement laid down by the decision impugned is that an organisation representing employees of the Company must be recognised by the National Labour Council and the Central Economic Council and represented on these bodies. According to the Acts whereby the National Labour Council and the Central Economic Council were set up, seats on the National Labour Council, whose competence covers general problems of a social nature, and the Central Economic Council, which is competent to deal with problems relating to the economy of the country, should be given to the organisations most representative of all Belgian workers in the various branches of industry and commerce. Here again the criterion evoked in the measure impugned would appear to deviate from the purpose prescribed by the law. Whereas the intention of the legislators was that matters of concern to the company's staff should be dealt with by a body composed of equal numbers of representatives of the company and representatives of staff organisations, the decision impugned has introduced a measure which allows seats on the Joint Committee to be given only to organisations which, in addition to being organisations of railway employees, also have another qualification, that of being representative of Belgian workers as a whole. This measure for the implementation of the law thus departs from the law in that it places the affairs of the company's staff in the hands, not of a committee composed of representatives of the management and representatives of the railway employees' trade unions, but of a committee composed of representatives of the management and representatives of all Belgian workers belonging to associations to which some railway employees also belong. It might be possible to defend this conception if the law were changed. It is not, however, consistent with the law as it now stands, which lays down that seats on the Joint Committee shall be given to organisations of members of the company's staff, without stipulating that these organisations must be affiliated to the organisations most representative of all Belgian workers in all occupations. By virtue of freedom of association and the right to organise, it is permissible to form associations consisting entirely of railway employees, and such associations, if formed in conformity with Belgian law, are not debarred from the Joint Committee by the Act establishing the Belgian National Railway Company."
9. 26. The Council of State itself fully concurred with the views expressed by the substitute for the Central Claims Officer, declaring that, while it was the responsibility of the authority vested with the power of framing the Company's regulations to issue rules to ensure 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. It 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 National Joint Committee the requirement that such organisations must be affiliated to a national interoccupational organisation, recognised by the National Labour Council and the Central Economic Council and represented on these bodies, fell under this heading. 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 the Act of 20 September 1948 making provision for the organisation of the economic life of the country.
10. 27. 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 interoccupational 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, and the consent given to this decision on the same date by the National Joint Committee, brought to the knowledge of the staff by Notice No. 49 P of 30 June 1962".
11. 28. The result of the order of nullification issued by the Council of State is that the situation as regards candidature for seats on the National Joint Committee has reverted back to the original status quo, and that it is therefore permissible to assume that, provided that the Independent Union of Belgian Railwaymen still fulfils the necessary qualification - i.e. that its membership amounts to at least 10 per cent of the staff in active employment - there is no longer any obstacle in the way of its being given, in proportion to its size, the representation it desires and seeks on the Joint Committee.