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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.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the International Organisation of Employers (IOE) and of the Federation of Enterprises in Belgium (FEB), dated 28 September and 1 October 2020, concerning issues raised in the present comment. It also 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 October and 9 November 2020, which, apart from referring to the issues examined in the present comment, denounce the lack of negotiation with trade unions regarding the adoption of measures to tackle the health crisis. The Committee requests the Government to send its comments on this point.

Article 1 of the Convention. Protection of staff delegates against anti-union discrimination. The Committee notes the allegations of the FGTB, CSC and CGSLB concerning an absence of adequately dissuasive penalties for abusive dismissal of staff representatives, and the Government’s reply in this regard, based on the Act of 19 March 1991, as amended in August 2002, which establishes specific dismissal procedures for employee delegates on workers’ councils and safety, health and workplace embellishment committees and for candidate employee delegates.

Article 4. Right to collective bargaining. Wage fixing. The Committee notes the observations of the trade union organizations on the Act of 26 July 1996 on employment promotion and the preventive maintenance of competitiveness, as amended by the Act of 19 March 2017. The trade union organizations indicate that the provisions of the Act result in the fixing of a maximum wage band that severely limits the possibilities for collective bargaining and does not really allow wage increases, not only on the national level, but also at the sectoral and enterprise level. The Committee notes that, according to the Government: (i) the goal of the legislation in question is to reduce the gap in wage costs with neighbouring countries in order to encourage the competitiveness of the country’s enterprises and the development of employment; and (ii) the mechanism for negotiating the wage band and wages has not been amended, and the role of the social partners remains critical in wage fixing. The Government explains that wage standards are determined by the Group of Ten comprising the executive bodies of the trade union and employers’ organizations, in the framework of the Interoccupational Agreement (AIP), based on the technical report of the Secretariat of the Central Economic Council (CCE). The Government indicates that: (i) the AIP has to be concluded before 15 January in odd-numbered years; (ii) the wage standard is then established through a collective labour agreement concluded by the National Labour Council (CNT), which is made obligatory by the King; (iii) if the social partners do not reach an agreement, the Government must summon them to a dialogue and formulate a mediation proposal; (iv) if no agreement is reached in the month following the dialogue, the King, by degree discussed by the Council of Ministers, shall fix the maximum band of wage cost increases for the two years that should have been covered by the AIP ; and (v) negotiations at the sectoral and enterprise level are then held, respecting the wage band determined at the interoccupational level. Therefore, in the Government’s view, the social partners play an important decision-making role in the wage fixing process, and the public authorities intervene only if they do not reach agreement. The Committee notes that an AIP was concluded for 2017–18, but that no agreement was reached for 2019–20 owing to an absence of unanimity in the Group of Ten, as had already been the case in 2013–14 and 2015–16. In this regard, the Committee recalls that the system had already been criticized by the FGTB, CSC and CGSLB in 2013. At that time, the Government explained that the system placed emphasis on the participation of the social partners and that, in the cases where the public authority had to fix the wage band due to a lack of agreement, it had followed the draft agreement concluded by the majority of the social partners. The Committee noted those replies. The Committee also notes that the IOE and the FEB emphasize that: (i) the social partners remain fully competent for negotiating wage adjustments and that the Government only intervenes on a subsidiary basis; and (ii) any such political decision is only valid for a limited duration. It applies for a maximum period of two years, after which the social partners regain their freedom of collective bargaining in each case. Noting the divergence in approach between the trade unions, on the one hand, and the Government and employers’ organizations, on the other, the Committee requests the Government to provide detailed information on the effect given to the provisions of the Act of 26 July 1996, as amended by the Act of 19 March 2017, so that it can assess their effects on the possibility of negotiating wages at any level.

Harmonization of the joint committees and workers in the platform economy. In its previous comments, the Committee noted the allegations of the trade unions 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. In this regard, the Committee noted the Government’s indications that the so-called “collaborative” economy, established by the Framework Act of 1 July 2016 and amended by the Act of 18 July 2018 on economic recovery and the strengthening of social cohesion, is a limited regime legally governed by a certain number of cumulative conditions. In particular, the activity must: (i) be provided through an approved platform that is also the intermediary for the payment for the service; (ii) be performed only by an individual for the benefit of another individual (delivery services to individuals of meals prepared by restaurants, for example, are excluded); (iii) be undertaken outside any occupational activity; and (iv) not result in compensation of over €6,250 a year. The Government also explains that: (i) when these conditions are fulfilled, the collaborative economy regime is applicable, as the services are provided outside occupational activity and any relation of subordination; (ii) in view of the limited amount of the compensation, the service providers are not in a situation of economic dependence in relation to either the approved platforms or those giving instructions; (iii) when the conditions for the collaborative economy regime are not fulfilled, the income is classified for tax purposes as self-employed income (resulting in the provider being subject to self-employed status), unless the provider proves that it is not occupational income (not subject to social security) or that the work is performed in the context of a relationship of subordination (subject to social security for employees); and (iv) if the work is performed in the context of a relationship of subordination, the whole body of labour law applies, including the regulations guaranteeing freedom of association, the right to organize and collective bargaining. The Government indicated that the self-employed may join bodies that defend the rights of self-employed workers, particularly in relation to Government authorities. The Committee noted that the information provided by the Government in reply to the allegations of the trade unions mainly related to people in the so-called “collaborative” economy (which, under the terms of the Act of 18 July 2018, consists of services of low economic value provided outside of occupational activity), which it distinguishes from other platform workers. However, the Committee noted that, according to the Government, platform workers not covered by the collaborative economy regime are by default considered to be self-employed, and that the provisions of labour law, including the right to collective bargaining, only apply if the work is performed in the context of a relationship of subordination. The Committee notes the information provided by the Government and trade unions (the FGTB, CSC and CGSLB) that the Constitutional Court, in Judgment No. 2020/53 of 23 April 2020, annulled the Act of 18 July 2018 at the request, inter alia, of the most representative workers’ organizations and a number of employers’ federations. Having been requested to issue a ruling on the question of the conformity of the tax- and labour-related aspects of the aforementioned Act with the constitutional principles of equality and non-discrimination, in that the Act establishes a difference of treatment (in tax- and labour-related terms) regarding the performance of activities in the context of associative work, occasional services among citizens or services in the collaborative economy, the Court considered, for each of the three activities, that this difference of treatment was unjustified. The Constitutional Court explains that “even though the uncertainty regarding correct classification may if appropriate justify the establishment of a separate status, such a status has already been created by the Framework Act of 1 July 2016. Moreover, this 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” (point B.7.7 of the Judgment of the Constitutional Court of 23 April 2020). The Committee also notes the Government’s indication that, pending a response from the legislature, income from associative work, occasional services and the collaborative economy will follow the ordinary tax and social security classifications and rules from 1 January 2021.

However, the Committee notes that the Government does not provide any information concerning the collective rights of platform workers that is new in relation to the information already communicated in 2019, namely 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.

Without prejudice to the legal classification applicable to the various kinds of platform workers, the Committee recalls that, in so far as all workers, with the only possible exception of members of the armed forces and the police and civil servants engaged in the administration of the state, are covered by the convention, the right to collective bargaining should also apply to organizations representing self-employed workers (see the 2012 General Survey on the fundamental Conventions, paragraph 209). The Committee also recalls that it is aware that the collective bargaining machinery applied in traditional labour relations may not be adapted to the specific circumstances and conditions of the work of self-employed persons. In view of the above, and duly noting the information sent on the Constitutional Court decision of 23 April 2020, the Committee requests 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 invites the Government 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. Considering that such consultations are intended 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 information on any progress achieved in this regard and on any legislative measures adopted or contemplated further to the Constitutional Court decision of 23 April 2020.

Night work for e-commerce. The Committee notes the allegations by the trade union organizations that the Government, through the Framework Act of 25 December 2017 and without consultation with the social partners, has made possible the introduction of night and Sunday work in enterprises engaged in e commerce with the agreement of a single representative trade union, rather than all of them. The Committee notes that the trade union confederations express their disagreement in this respect with what they consider to be a use of collective bargaining for the purposes of deregulation. The Committee also notes the Government’s indications that, where the law requires the conclusion of a collective agreement at the enterprise level as a condition for the implementation of a measure, the legislator thereby wishes to prevent the employer from being able to unilaterally introduce the stipulated measure and to guarantee social dialogue. The Government indicates that: (i) in accordance with the “normal” rules of Belgian collective labour law, a collective agreement at the enterprise level may be concluded by a single representative workers’ organization; (ii) stricter rules exist for night work, in the sense that, for example, in order to introduce a labour regime that includes night work (work performed between midnight and 5 a.m.), a collective labour agreement must be concluded with all the trade unions represented in the enterprise trade union delegation; and (iii) in order to facilitate night work for the purposes of e-commerce, the Belgian legislator re-introduced the “normal” rule, which means that the conclusion of a collective agreement at the enterprise level with a single trade union is sufficient to introduce night work into e-commerce. The Committee notes that, in respect of night work, the rules of collective bargaining applicable to e-commerce have been amended by the Framework Act of December 2017, and that the trade unions criticize both the lack of dialogue in this regard and the use of collective bargaining for purposes of deregulation. The Committee wishes to recall that, under Article 7 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Belgium, measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation, and, whenever possible, agreement between public authorities and employers’ and workers’ organizations. In view of the above, the Committee invites the Government to hold consultations with the parties concerned to assess the effects of the exemption to the rules of collective bargaining introduced for e-commerce in relation to night work, and to determine possible measures to be taken in this regard.

Taking trade union organisations to court for non-compliance with collective bargaining commitments. The Committee takes note of the observations of the FEB and the IOE, which contain allegations that Belgian companies are regularly confronted with trade union actions carried out in violation of the provisions of the sectoral collective labour agreements, such as conventional conciliation procedures and formalities related to strike notice. They consider 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 notes that the Government indicates that : (i) various laws confer on trade union organisations a limited, functional and active legal personality, such as the Law of 5 December 1968 on Collective Agreements and Joint Committees which, inter alia, allows representative trade unions to conclude collective labour agreements ; (ii) according to article 4 of this law, representative organisations may take legal action in all disputes to which the application of this law would give rise and for the defence of the rights of their members deriving from the agreements concluded by them; and (iii) this article implies that trade union organisations may take legal action as plaintiffs, but may also be sued if they do not comply with the aforementioned law or a collective agreement.

The Committee notes a divergence between the views of the employers' organisations mentioned above and those of the government in cases of non-compliance with commitments entered into under a collective agreement. It notes that article 4 of the Law of 5 December 1968 extends the prerogative granted by law to representative trade union organisations, although they do not have legal personality, to conclude collective agreements with the capacity to take legal action to enforce their content, and observes that the question raised by the employers' organisations concerns the counterpart of this right to take legal action, namely the possibility of bringing trade union organisations before the courts. While stressing that mutual respect for the commitments undertaken in collective agreements is a central aspect of the right to collective bargaining, the Committee requests the Government to indicate any legal obstacles that may prevent legal action from being taken against trade unions for failure to comply with their commitments in collective agreements, and to make any useful comments on the impact of the current situation on the effective implementation of collective agreements.

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) of 30 August 2019 relating to issues examined in this comment, and the Government’s reply in this regard, received on 29 October 2019.

Article 1 of the Convention. Protection of staff delegates against anti-union discrimination. The Committee notes the allegations of the FGTB, CSC and CGSLB concerning an absence of adequately dissuasive penalties for abusive dismissal of staff representatives, and the Government’s reply in this regard, based on the Act of 19 March 1991, as amended in August 2002, which establishes specific dismissal procedures for employee delegates on workers’ councils and safety, health and workplace embellishment committees and for candidate employee delegates.

Article 4. Right to collective bargaining. Wage fixing. The Committee notes the observations of the trade union organizations on the Act of 26 July 1996 on employment promotion and the preventive maintenance of competitiveness, as amended by the Act of 19 March 2017. The trade union organizations indicate that the provisions of the Act result in the fixing of a maximum wage band that severely limits the possibilities for collective bargaining and does not really allow wage increases, not only on the national level, but also at the sectoral and enterprise level. The Committee notes that, according to the Government: (i) the goal of the legislation in question is to reduce the gap in wage costs with neighbouring countries in order to encourage the competitiveness of the country’s enterprises and the development of employment; and (ii) the mechanism for negotiating the wage band and wages has not been amended, and the role of the social partners remains critical in wage fixing. The Government explains that wage standards are determined by the Group of Ten comprising the executive bodies of the trade union and employers’ organizations, in the framework of the Interoccupational Agreement (AIP), based on the technical report of the Secretariat of the Central Economic Council (CCE). The Government indicates that: (i) the Interoccupational Agreement has to be concluded before 15 January in odd-numbered years; (ii) the wage standard is then established through a collective labour agreement concluded by the National Labour Council (CNT), which is made obligatory by the King; (iii) if the social partners do not reach an agreement, the Government must summon them to a dialogue and formulate a mediation proposal; (iv) if no agreement is reached in the month following the dialogue, the King, by degree discussed by the Council of Ministers, shall fix the maximum band of wage cost increases for the two years that should have been covered by the Interoccupational Agreement; and (v) negotiations at the sectoral and enterprise level are then held, respecting the wage band determined at the interoccupational level. Therefore, in the Government’s view, the social partners play an important decision-making role in the wage fixing process, and the public authorities intervene only if they do not reach agreement. The Committee notes that an Interoccupational Agreement was concluded for 2017–18, but that no agreement was reached for 2019–20 owing to an absence of unanimity in the Group of Ten, as had already been the case in 2013–14 and 2015–16. In this regard, the Committee recalls that the system had already been criticized by the FGTB, CSC and CGSLB in 2013. At that time, the Government explained that the system placed emphasis on the participation of the social partners and that, in the cases where the public authority had to fix the wage band due to a lack of agreement, it had followed the draft agreement concluded by the majority of the social partners. The Committee noted those replies. Noting the divergence in approach between the trade unions and the Government, the Committee requests the Government to provide detailed information on the effect given to the provisions of the Act of 26 July 1996, as amended by the Act of 19 March 2017, so that it can assess their effects on the possibility of negotiating wages at any level.

Harmonization of the joint committees and workers in the platform economy. The Committee notes the allegations of the trade unions that, without consultation with the social partners, workers in the platform economy have been 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. In this regard, the Committee notes the Government’s indications that the so-called “collaborative” economy, established by the Framework Act of 1 July 2016 and amended by the Act of 18 July 2018 on economic recovery and the strengthening of social cohesion, is a limited regime legally governed by a certain number of cumulative conditions. In particular, the activity must: (i) be provided through an approved platform that is also the intermediary for the payment for the service; (ii) be performed only by an individual for the benefit of another individual (delivery services to individuals of meals prepared by restaurants, for example, are excluded); (iii) be undertaken outside any occupational activity; and (iv) not result in compensation of over €6,250 a year. The Government also explains that: (i) when these conditions are fulfilled, the collaborative economy regime is applicable, as the services are provided outside occupational activity and any relation of subordination; (ii) in view of the limited amount of the compensation, the service providers are not in a situation of economic dependence in relation to either the approved platforms or those giving instructions; (iii) when the conditions for the collaborative economy regime are not fulfilled, the income is classified for tax purposes as self-employed income (resulting in the provider being subject to self-employed status), unless the provider proves that it is not occupational income (not subject to social security) or that the work is performed in the context of a relationship of subordination, the whole body of labour law applies, including the regulations guaranteeing freedom of association, the right to organize and collective bargaining. Finally, the Government indicates that the self-employed may join bodies that defend the rights of self-employed workers, particularly in relation to Government authorities. The Committee notes that the information provided by the Government in reply to the allegations of the trade unions mainly relates to people in the so-called “collaborative” economy (which, under the terms of the Act of 18 July 2018, consists of services of low economic value provided outside of occupational activity), which it distinguishes from other platform workers. However, the Committee notes that the Government also indicates that platform workers not covered by the collaborative economy regime are by default considered to be self-employed, and that the provisions of labour law, including the right to collective bargaining, only apply if the work is performed in the context of a relationship of subordination. In this regard, and without prejudice to the legal classification applied to the various kinds of platform workers, the Committee recalls that paragraph 209 of its 2012 General Survey on the fundamental Conventions indicates that the right to collective bargaining should also apply to organizations representing self-employed workers. The Committee also recalls that it is aware that the collective bargaining machinery applied in traditional labour relations may not be adapted to the specific circumstances and conditions of the work of self-employed persons. In view of the above, the Committee requests the Government to provide further 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 invites the Government 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. Considering that such consultations are intended 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 information on any progress achieved in this regard.

Night work for e-commerce. The Committee notes the allegations by the trade union organizations that the Government, through the Framework Act of 25 December 2017 and without consultation with the social partners, has made possible the introduction of night and Sunday work in enterprises engaged in e commerce with the agreement of a single representative trade union, rather than all of them. The Committee notes that the trade union confederations express their disagreement in this respect with what they consider to be a use of collective bargaining for the purposes of deregulation. The Committee also notes the Government’s indications that, where the law requires the conclusion of a collective agreement at the enterprise level as a condition for the implementation of a measure, the legislator thereby wishes to prevent the employer from being able to unilaterally introduce the stipulated measure and to guarantee social dialogue. The Government indicates that: (i) in accordance with the “normal” rules of Belgian collective labour law, a collective agreement at the enterprise level may be concluded by a single representative workers’ organization; (ii) stricter rules exist for night work, in the sense that, for example, in order to introduce a labour regime that includes night work (work performed between midnight and 5 a.m.), a collective labour agreement must be concluded with all the trade unions represented in the enterprise trade union delegation; and (iii) in order to facilitate night work for the purposes of e-commerce, the Belgian legislator re-introduced the “normal” rule, which means that the conclusion of a collective agreement at the enterprise level with a single trade union is sufficient to introduce night work into e-commerce. The Committee notes that, in respect of night work, the rules of collective bargaining applicable to e-commerce have been amended by the Framework Act of December 2017, and that the trade unions criticize both the lack of dialogue in this regard and the use of collective bargaining for purposes of deregulation. The Committee wishes to recall that, under Article 7 of the Collective Bargaining Convention, 1981 (No. 154), ratified by Belgium, measures taken by public authorities to encourage and promote the development of collective bargaining shall be the subject of prior consultation, and, whenever possible, agreement between public authorities and employers’ and workers’ organizations. In view of the above, the Committee invites the Government to hold consultations with the parties concerned to assess the effects of the exemption to the rules of collective bargaining introduced for e-commerce in relation to night work, and to determine possible measures to be taken in this regard.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

The Committee notes the comments of the International Trade Union Confederation of 30 August 2013, as well as those of the Confederation of Christian Trade Unions, the General Confederation of Liberal Trade Unions of Belgium and the General Labour Federation of Belgium, dated 10 September 2013, concerning legislation restricting collective wage bargaining in the private sector, which is submitted to criteria of competitiveness. The Committee requests the Government to reply to these comments.

Observations received from trade union organizations. In its previous direct request, the Committee had noted the observations made by the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009 reporting that there had been anti-union dismissals despite the protection afforded by the Act of 19 March 1991 establishing special rules on dismissal applying to staff representatives on works councils and on committees for safety, health and the enhancement of workplaces, and for candidates standing for such office. The Committee notes that the ITUC reiterates its comments in a communication dated 4 August 2011. The Committee notes the Government’s reply indicating that the Act provides for the possibility for an unlawfully dismissed worker, who has submitted his or her candidature for the position of a trade union official, to make a request for his or her reinstatement in the enterprise. The employer has a 30-day period in which to reply to such a request. The reinstatement, or its refusal, might have repercussions on the amount of compensation that the employer has to pay the worker concerned. The Government acknowledges that as the law stands now, there is no obligation for the employer to reinstate a worker, but the possibility exists. This lack of obligation is nevertheless compensated by the employers’ obligation to pay an additional allowance that is considerably high, with a maximum of eight years of pay in the case of unlawful dismissal upon refusal to reinstate the worker within the 30-day period. The Committee takes note of this information.

The Committee notes the communication dated 31 August 2011 from the General Confederation of Liberal Trade Unions of Belgium (CGSLB–Syndicat libéral) concerning the mechanism of establishing the maximum margin of growth in labour costs established by the Act of 26 July 1996, implemented by the Royal Decree of 28 March 2001. The Committee notes the Government’s reply thereon.

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Belgium (Ratification: 1953)

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