Definitive Report - Report No 92, 1966

Case No 376 (Belgium) - Complaint date: 31-JAN-64 - Closed

1. 18. The complaint of the International Confederation of Senior Officials is contained in a communication addressed directly to the I.L.O and dated 31 January 1964, and is supplemented by a communication dated 14 February 1964. The complaint and the additional observations in its support were transmitted to the Government for observation in two letters dated respectively 10 February and 3 March 1964. The Government replied by a communication dated 18 June 1964. The Committee proceeded to a preliminary examination of the allegations and observations submitted thereon by the Government at its 38th Session in November 1964.
2. 19. 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. A. The complainants' allegations

1. 20. The complainants allege that the system applied in Belgium, under which important social and pecuniary privileges are granted only to members of particular organisations, is contrary to the principles of freedom of association. This restriction, they continue, is in fact operated to the sole advantage of members of officially recognised organisations. Despite the existence of criteria the recognition of a trade union in Belgium depends upon a unilateral decision of a political authority, with the result that the only unions recognised are those linked more or less closely to the three national parties that regularly participate in coalition governments. The consequence, the complainants state, is that workers wishing union activities to remain independent, or refusing to support organisations professing a political ideology to which they do not subscribe, are deprived of privileges conceded to their colleagues. The complainants state that, while it is normal and even desirable for the Government to encourage trade unionism among workers, it is wrong for pressure in that direction to be exerted on behalf of officially recognised organisations only. Such a system, they continue, means arbitrary restriction of the workers' choice to the three big existing organisations-socialist, christian and liberal.
2. 21. In its observations submitted on 18 June 1964 the Government pointed out that the social and pecuniary privileges granted to the recognised organisations are generally granted because these organisations render great services to the community. In fact, the Government continues, at the national level and that of the industry or undertaking, the workers' representative organisations help to promote social progress and to improve the working conditions of employed persons, whether union members or not. The social privileges in question should, therefore, be regarded as a reward for the action taken by the unions. The Government adds that no regulations have ever been made by the Executive that expressly exclude non-trade-union workers from social privileges. The Government is not a party to agreements between the organisations of employers and workers concerning the reservation of social privileges; it has no decisive role to play in the conclusion of these agreements.
3. 22. When it examined the case at its meeting in November 1964 the Committee was of the opinion that in order to determine more clearly the possible scope of the system to which the complainants object it would be useful for the Committee to know, first, the exact nature of the social and pecuniary privileges referred to in the present matter, and secondly the way in which the privileges in question are granted (or withheld) and, more precisely, whether this is done under legislation or collective agreements. The Committee therefore requested the Government to furnish additional information on these two points. The request was submitted to the Government in a letter dated 18 November 1964 and the Government replied by a communication dated 2 February 1965.
4. 23. In its answer, in order to ensure a better understanding of the practice, which it claims to be recent, of granting privileges to members of trade unions, the Government first of all gives a picture of the legal and sociological background against which the Belgian system of collective labour relations is set.
5. 24. Freedom of association, it states, is guaranteed by article 20 of the Constitution and by the Act of 24 May 1921. Section 1 of this Act stipulates that " no person shall be compelled to join or refrain from joining any association ". Section 3 lays down penalties for any person who "for the purpose of compelling a particular individual to join or refrain from joining an association, resorts to violence, molestation or threats...". Section 4 lays down penalties for any person who, " with intent to attack freedom of association, makes the conclusion, the execution or (even with due regard to customary notice) the continuance of a contract of work or service conditional upon the affiliation or non-affiliation of one or more persons to an association ". These provisions, the Government continues, enable any individual to secure justice from the courts whenever he considers that his own freedom of association has been impaired by violence, molestation or coercion. It adds that the general practice is to go to court to secure damages for any injury suffered in cases of this type.
6. 25. The Government goes on to state that in Belgium no compulsory legal status is applied to trade union organisations. They are at liberty to avail themselves or not, as they wish, of the system laid down in the Occupational Association Act of 31 March 1898. Hitherto, the trade union organisations have preferred not to do so, and they therefore constitute de facto associations, with no obstacle in the way of their establishment or operation.
7. 26. The Government defines collective agreements as agreements dealing with general employment relations and conditions, concluded between one or more workers' organisations on the one hand and one or more employers' organisations on the other. It follows, at least at the level of an undertaking or undertakings, that any trade union organisation is at liberty to conclude collective agreements on any subject, provided that their terms are not contrary to public order or the law of the land. These provisions, states the Government, may therefore institute better conditions than those prescribed by law or they may grant privileges not prescribed by law-as in the case of benefits confined to union members.
8. 27. At the national or regional level, the Government continues, the law takes steps to encourage collective relations between employers' and workers' organisations; these steps are essentially practical and relate to joint committees, whose main function is to lay down general scales of pay for the various degrees of skill, in particular by means of collective agreements. It is impossible to give seats on the joint committees to all organisations; the law therefore stipulates that only the largest organisations can belong to these committees and it lays down a number of criteria for selecting the representative organisations: in order to be considered representative and to have a seat on a joint committee a trade union organisation must form part of a national organisation covering more than one occupation, having a membership of at least 30,000 and represented on the Central Economic Council and the National Labour Council.
9. 28. Nothing, continues the Government, keeps a joint committee from negotiating collective agreements establishing privileges for the members of the signatory organisations, and this results from the regulations governing the status of the joint committees and also from the principle of free negotiation which forms the basis of the collective bargaining system. Nor does this system, adds the Government, keep any trade union organisation, if it is powerful enough, from proving that it meets the criteria for recognition as a national representative body and taking its place on these joint committees.
10. 29. Before pronouncing on the substance of this question it is necessary to look at it against the background of the problems concerning advantages accorded to certain trade unions which the Committee has had to consider in the past.
11. 30. In such cases the Committee has drawn a distinction between advantages accorded by the State and those resulting from agreements between employers and workers.
12. 31. Where it is the State which in law or in practice distinguishes between the different unions concerned the Committee has taken the view that such measures should go no further than to recognise a factual situation and be founded on objective criteria established beforehand and based on factors which offer no opportunity for abuse. In these circumstances the Committee has conceded that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness, 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.$
13. 32. Moreover, where the special advantages are accorded by collective agreement and without intervention by the State they may be assimilated to union security clauses, as referred to subsequently.
14. 33. In these circumstances, judging from the Government's observations in the present case, it would appear that in Belgium, at the national and, apparently, at the regional level also, the conditions that must be fulfilled if a trade union organisation is to be considered representative and so entitled to participate in a joint committee and negotiate the reservation of privileges to its members are three in number: that the organisation shall form part of a national organisation covering more than one occupation; that this national organisation shall have at least 30,000 members; and that this national organisation shall be represented on the Central Economic Council and the National Labour Council. The Government states in its observations that the established system does not keep an organisation that is powerful enough from proving that it meets the criteria for recognition as a national representative body and taking its place on these joint committees.
15. 34. As concerns the first two criteria-that the organisation forms part of a national organisation covering more than one occupation and that the national organisation has at least 30,000 members-it might, it appears, be considered that, in the case of national or regional joint committees whose competence extends to all branches of economic activity, the organisations wishing to take part in the joint committees might fulfil the criteria if they are sufficiently representative. It might, however, be wondered whether these criteria are also valid for joint committees restricted to one branch of activity or to a specified sector and whether, in such event, there is not a danger of forming an incorrect appraisal of the representative quality of the organisations in the sector in question.
16. 35. As regards the third condition-that the national organisation to which the organisation in question belongs shall be represented on the Central Economic Council and the National Labour Council-if representation on these two councils is not automatic but depends on the discretion of the public authorities, it would seem important that the intervention of the public authorities does not result in discretionary preference being given to certain trade unions to the detriment of others and therefore that recognition by the State of the representative quality of trade union organisations should be based on pre-established objective criteria which leave no scope for abuse.
17. 36. With regard to the more specific questions raised by the Committee on the nature, scope and attribution of the social and pecuniary privileges in question, the Government first of all explains how the system of privileges may be defended on what might be called moral grounds by stating that the usual justifications of the system are that the trade union organisations contribute to the development of the economic and social life of the nation; that they are the best guarantee of social peace; that it is their members alone who bear the weight of efforts that ultimately benefit the whole community; that it is only fair for the undertakings benefiting from the economic development and social peace to grant privileges to their trade unionists in return for the sacrifices made.
18. 37. With regard to the scope of these privileges the Government states that the persons covered are trade unionists belonging to an organisation that has signed the collective agreement under which privileges are granted and that the cost of the privileges is met by the employer or employers signing the agreement.
19. 38. The Government offers the following observations on the nature of the privileges and the manner of attributing them. The privileges are pecuniary in nature and generally take the form of annual bonuses, more or less equal to the amount of the union dues. They are unconnected with any contractual scheme; in other words they do not arise out of a statutory system (established by legislation on contracts of employment, for example) or an individual contract of employment (contract of employment concluded between a certain worker and a certain employer). They depend neither on the actual performance of work nor on any social legislation. They are therefore benefits outside the legal and contractual systems and-properly called - not social benefits but trade union benefits. The privileges granted to certain trade unionists are always attributed by collective agreement and not by legislation.

B. B. The Committee's conclusions

1. 39. It is difficult for the Committee to assess exactly to what extent the privileges, as described by the Government, are economically attractive enough to induce a worker to join one union rather than another or to leave the union he belongs to for another offering him the benefit of the reserved advantages. Furthermore, according to the Government's statement, the privileges are always attributed under collective agreements. Belgium, however, being one of the countries in which collective agreements can be extended by decision of the Government, it would seem appropriate that the Government, when it decides to extend a collective agreement, should take care that this extension does not result in infringing the workers' freedom of choice in joining a union by reason of the economic effects of the clauses providing for pecuniary privileges.
2. 40. The above having been stated it none the less remains true that the privileges are in general attributed under collective agreements and, in view of this, they can be compared with union security clauses. As the Committee observed in previous cases, the International Labour Conference considered union security clauses to be matters for regulation in accordance with national practice. It cited in this connection the following statement by the committee set up by the Conference to examine the question: " The Committee finally agreed to express in the report its view that the Convention (No. 98) could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice."

The Committee's recommendations

1. 41. The Conference accepted this point of view in adopting the report of the committee it had set up, and the Committee on Freedom of Association therefore considers that it is not qualified to examine the problem as concerns its essence and recommends to the Governing Body to decide, while noting the observations contained in the preceding paragraphs, that it is not called upon to formulate a decision on the case.