Definitive Report - Report No 335, November 2004

Case No 2306 (Belgium) - Complaint date: 01-NOV-03 - Closed

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INTRODUCTION
A. The complainant’s allegations
C. The Committee’s conclusions
The Committee's recommendations
Annex

Allegations: The Belgian federal authorities, more specifically the Customs and Excise Administration and the General Finance Administration Service, apply national legislation on trade union leave and dispensations from service, to the detriment of the complainant organization and its officials, and, on that basis, refuse to allow any request for leave and dispensations from service and threaten to put them in a “position of non-activity”; by acting thus, the Belgian federal authorities are interfering in the exercise of the right of the complainant organization to freely organize its management and activities, suspending its activities by administrative means and discriminating against recognized and non-representative public employees’ unions, in violation of Convention No. 87

268. The complaint was presented by the Organization of Independent Civil Servants (OFA) in two letters dated 1 and 10 November 2003, with annexes. The OFA sent additional information in two letters dated 24 November and 2 December 2003.

269. The Government sent its observations in a letter of 3 May 2004, together with a number of enclosed documents.
270. Belgium has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

271. The OFA is an organization of public employees recognized on 1 April 2000 as a trade union from all levels of the civil service. Two of its responsible executives are employees of the Customs and Excise Administration.
272. The OFA’s arguments can be grouped under the following topics: (1) the OFA’s legal arguments based on national law and practice; (2) the OFA’s allegations concerning the application of the law by the public authorities to its detriment; and (3) violations of Convention No. 87.
I. Legal arguments based on national law
and practice
273. The OFA states that the Government has not taken any measures to implement the law on trade union leave and dispensation from service for trade union activities (see annex describing the legal and regulatory provisions concerned). In the absence of a circular covering trade union leave and an interpretation with binding force, the complainant organization maintains that a custom has developed over the last 20 years.
274. According to the OFA, the custom referred to by both representative and recognized trade unions, consists of the following elements:
(a) as Belgium has ratified the Conventions of the International Labour Organization, these prevail over national laws;
(b) under article 71 of the Royal Decree of 28 September 1984 (concerning the implementation of the Act of 19 December 1974 on the organization of relations between the public authorities and trade unions of employees of those authorities), responsible representatives rank highest among all the categories of trade union delegates ranked in descending order of importance;
(c) under article 72 of the Royal Decree, responsible representatives have the right to exercise all the prerogatives of their trade unions;
(d) responsible representatives are entitled at all times to the right to trade union leave, provided that the convocation complies with the required prior notice, is signed by a responsible executive, states the day and length of the mission, and refers to article 82 of the Royal Decree;
(e) responsible representatives are entitled at all times to the right to dispensations from service provided that the convocation satisfies the abovementioned requirements and refers to article 83 of the Royal Decree;
(f) with regard to items (d) and (e) above, no other reference is required by law;
(g) ordinary delegates are entitled to trade union dispensations from service for trade union purposes, provided that their convocations satisfy the four conditions mentioned in (d) and (e) above;
(h) permanent delegates are designated by their trade unions;
(i) representative trade unions designate permanent delegates whose salaries are reimbursed by the State;
(j) recognized trade unions and representative trade unions have responsible representatives on permanent trade union leave or dispensations from service;
(k) representative trade unions have ordinary delegates on permanent trade union dispensation;
(l) convocations issued by consultative or bargaining committees state the time, place and duration of the dispensation from service for trade union purposes and only apply to representative trade unions;
(m) representative trade unions and recognized trade unions have the right to form their own general commissions and committees; the Royal Decree does not contain any provisions as to the number of committees and the frequency with which they meet.
275. The OFA states that, in the absence of any detailed provisions on the relations between organizations of public employees and administrations, the General Secretary of the General Administration Service took a position on the provisions of the Act of 19 December 1974 and the Royal Decree of 28 September 1984. This position was set out specifically in a letter to the OFA, dated 25 August 2000, the terms of which are set out in detail below. According to the OFA, the opinion of the General Administration Service is not a binding interpretation and is invariably the subject of comment during the question-and-answer sessions in Parliament.
276. It emerges from the Government’s replies during these debates that, under article 82 of the Royal Decree of 28 September 1984, trade union leave may only be obtained for the necessary length of time and only on presentation of a personal convocation by a responsible executive. Subject to these conditions, the said leave is obtained as of right. This article must be interpreted narrowly and does not allow any extension or exception. More specifically, the Government indicates that “general commissions and committees” must be understood to mean “in principle, committees and commissions formed at national, community and regional level”. Thus, participation in any kind of technical committees or trade union meetings, meetings held at local union branches to prepare for local bargaining and consultative committees, national or international congresses, even those held in Belgium, are excluded from the scope of that article.
277. Furthermore, the authority may require reasonable notice for the presentation of the convocations, mission orders, mandates or requests set out in articles 81 to 84 of the Royal Decree. This prior notice requirement is necessary to ensure the continuity and efficient operation of the service and it is up to the authority to decide on the necessary notice for the presentation of the request. As articles 81 to 84 provide that all trade union leave and dispensation from service must be obtained for the time necessary to fulfil the trade union mission, the authority concerned is entitled: (1) to require that the various documents mentioned in those articles state, in particular, the times when the trade union missions start and, approximately, end; (2) to check the veracity of the information; and (3) to punish any abuses that it finds. Finally, according to the Government’s interpretation, it follows from the inclusion of the term “necessary length of time” that “it is not acceptable for a member of staff to be absent on the pretext of trade union leave or dispensation from service continually or practically continually. If such is the case, that staff member should, at the request of his trade union, be recognized as a permanent delegate …”.
278. In the opinion of the OFA, the Government’s only response which applies to all the legal principles in force in Belgium is that it refers to the following two elements in particular: (1) the provisions of the trade union statute relating to the exercise of trade union prerogatives “draw their inspiration from the wish, first, to prevent any interference with the essence of these prerogatives and, secondly, to ensure that the exercise thereof does not endanger the efficient operation of the service”; and (2) “the prerogatives of trade union delegates depend on the category in which they are classified under article 71 of the Royal Decree [of 28 September 1984], it being understood that the same person may be placed in two or more categories at the same time …”. The complainant organization considers that the second clarification is of crucial importance because small public employees’ organizations operate with persons who fulfil several functions. It considers that this clarification is quickly forgotten by the Government when it suits it.
II. Allegations concerning the application of national law to the detriment of the OFA’s
trade union delegates
(a) The position of the General Administration Service –
Letter of 25 August 2000
279. On 18 July 2000, the Federal President of the OFA, Mrs. Decèvre, complained to the General Secretary of the General Administration Service about the failure to respect the organization’s trade union rights. In its complaint, the OFA states that, at the time, its responsible representative, an official in the Customs and Excise Administration, was subjected to moral harassment at his place of work.
280. The General Secretary’s reply, in a letter of 25 August 2000, explains the conditions under which trade union leave and dispensation from service may be obtained. The General Secretary emphasizes that the OFA’s trade union delegates may obtain trade union leave under article 82 of the Royal Decree of 28 September 1984 (participation in the work of general commissions and committees formed within the trade union) and dispensation from service under article 83 (to exercise one of the prerogatives listed in article 16(1), (2) and (3) of the Act of 19 December 1974).
281. While articles 82 and 83 do not set out a quota of trade union leave and dispensations from service and provide that they are granted as of right, the General Secretary nevertheless emphasizes that the granting thereof is subject to certain conditions. It states that in order for the authority to be able to verify compliance:
It is compulsory for convocations, requests or mission orders to mention the following: date on which the document is created (prior notice); name of the trade union delegate concerned (personal character); place of the meeting or exercise of the prerogative (verification of membership of the committee concerned); date and time of the meeting or exercise of the prerogative (necessary character of the length of time); reference to article 82 or 83 […] and indication of the circumstance (meeting of a clearly defined general commission or committee, prerogative concerned); personal signature of a responsible executive, taking responsibility for the information mentioned above.
282. The General Secretary also recalls that the two articles must be interpreted narrowly. In particular, the term “general commission and general committee” in article 82 means meetings which are not frequent in nature and cannot in any sense be likened to routine internal and technical meetings. Moreover, in the case of article 83, the General Secretary indicates that trade union delegates can only obtain dispensation from service if the exercise of the prerogative concerned in the request takes place in the context of the committee related to the public service which employs them. More precisely, staff of the Customs and Excise Administration come under the Committee for Sector II (Finance) and thus can only exercise the prerogatives of their trade unions in the context of that committee.
283. The OFA considers that the Secretary General’s letter shows a wish to limit the prerogatives of recognized unions. In addition, the OFA alleges that this is an example of interference in the internal affairs of trade unions, since the letter seeks total control over trade union actions by the federal administrations.
284. The OFA indicates that, despite the letter from the General Administration Service, the Customs and Excise Administration did not respond and, for three years, did not require from the OFA any explanation or justification of the type of mission or schedule of trade union delegates. Indeed, it was only from August 2003 that the Customs and Excise Administration challenged the trade union convocations issued by the OFA.
(b) Letters from the Customs and Excise Administration
in 2003 concerning trade union convocations
issued by the OFA
285. In two letters dated 7 August 2003, the Customs and Excise Administration informed the OFA that four trade union convocations which it had sent to Mr. Marc Paul did not satisfy the necessary conditions for obtaining trade union leave and dispensations from service.
286. The administration gives the following reasons: (1) the convocations refer to participation in the work of consultative and bargaining committees (article 81 of the Royal Decree) although the OFA is not a representative organization; (2) the trade union activities as mentioned in the convocations and taking place in the trade union’s headquarters could not be considered as participation in the work of the general commissions and committees envisaged in article 82; (3) the administrative authority in respect of which the prerogatives laid down in article 16 of the Act of 19 December 1974 was not stated, whereas such prerogatives could only be exercised, by the official concerned, in premises occupied by public services coming under the umbrella of the Committee for Sector II (Finance); and (4) in the same document, the convocations mention several types of trade union activities and several dates “such that it is impossible for the authority to know which activity corresponds to which precise date and time”.
287. The Customs and Excise Administration thus asks the OFA, for each activity mentioned in the convocations, to provide it with an explanation certifying that the person concerned has actually engaged in the trade union activities for which the Royal Decree of 28 September 1984 provides for trade union leave and dispensations from service. In addition, the Customs and Excise Administration observes that, in general, convocations issued by the OFA are not dated and are almost routinely submitted to it during the period for which trade union leave or dispensations from service are requested. It asks that in future any new convocation should reach it sufficiently early and in any case not later than the day preceding the envisaged absence.
288. In its complaint, the OFA recognizes that an error was made in the title of the mission. However, it indicates that the requests were justified. The official had to finish certain dossiers and undertake a number of trade union activities. The OFA also explains that at the time the official concerned was being subjected to harassment by his superiors.
289. A letter of 11 August 2003 from the Customs and Excise Administration relates to various convocations issued to the Federal President of the OFA. In this letter, the Administration considers that the convocations do not meet the conditions set out in the Royal Decree of 28 September 1984 for reasons similar to those set out in its first letter of 7 August 2003. A further letter dated 14 October 2003, in the same vein as the previous ones, was addressed to the OFA with regard to two trade union convocations concerning the Federal Secretary, Mr. Noel Raepsaet.
(c) Meeting of 18 September 2003 with the Customs
and Excise Administration
290. Taking the view that the Royal Decree was being interpreted wrongly, the OFA and another recognized trade union, the Independent Public Service Federation (CASP) sent a letter dated 17 September 2003 to the Director-General of the Customs and Excise Administration.
291. A meeting was arranged on 18 September 2003 between representatives of the Customs and Excise Administration, the OFA, the CASP and another recognized trade union. Following the meeting, observing that the arguments put forward by the OFA in particular were not such as to change the position explained in its letters, mentioned above, the Customs and Excise Administration announced that the whole question would be referred to higher authority, with a view to resolving the matter once and for all.
292. In a letter of 20 October 2003 sending the minutes of the meeting to the OFA, the deputy Director-General of the Customs and Excise Administration emphasized that, pending an official decision, the organization must comply with the terms of the letter of 25 August 2000. He also makes reference to the new convocation form used by the OFA explaining that it still did not comply with certain conditions.
293. According to the OFA, the meeting of 18 September 2003 demonstrates the wish of the Customs and Excise Administration to finally restrict all trade union leave and dispensations from service and to interfere in the internal affairs of the OFA by allowing it only the right to hold one or two general committees per year. In this regard, it should be noted that, in its comments on the minutes of the meeting, the OFA emphasizes certain remarks that were apparently made by one of the representatives of the Administration: “Our intention is to restrict the dispensations issued by non-representative recognized unions”.
(d) Consequences of the letters from the Customs and Excise Administration: The position of “non-activity”
294. The OFA maintains that up to now every request for dispensation from service or trade union leave has been refused a posteriori. The responsible representatives are threatened with being placed in a position of “non-activity” under articles 3 and 4 of the Royal Decree of 19 November 1998 relating to leave and absences permitted to members of staff of state administrations.
295. In support of its allegation, the OFA submits a copy of a letter addressed to the Federal Secretary of the OFA, Mr. Raepsaet, dated 29 October 2003, by his service chief. The latter recalls that the OFA convocation which Mr. Raepsaet presented for the period 27-31 October 2003 did not meet the conditions set out in the Royal Decree of 28 September 1984. He therefore expressed surprised that Mr. Raepsaet had not resumed his duties on 27 October. He went on to say that if a convocation meeting the regulation conditions were not submitted to him, he would be forced to propose to the central administration that it should invoke articles 3 and 4 of the Decree of 19 November 1998.
296. In its letter of 10 November 2003 to the Committee, the OFA alleges that Mr. Raepsaet was the subject of sanctions on the grounds of his trade union activity. It also sends a copy of its letter, dated the same day, to the Minister of Finance, in which it points out, in particular: (1) that the trade union convocation was submitted in advance on 24 September 2003 and that it had in fact been approved by the service chief; (2) that a reformulated convocation had been submitted and rejected by the service chief who said that he was going to propose application of the Royal Decree of 19 November 1998.
297. The OFA’s letter of 24 November 2003 addressed to the Committee encloses a second letter, dated the same day, to the Minister of Finance, in which the OFA states that “… Customs continue to take it upon themselves to judge whether trade union activities of recognized organizations are plausible or considered satisfactory” and that they grant dispensations from service for trade union purposes “if the face fits”. Finally, the OFA’s last letter of 2 December 2003 to the Committee includes a copy of its letter of 1 December 2003, also to the Minister of Finance, complaining of the fact that Mr. Raepsaet had been transferred to an “insalubrious” and “dangerous” service.
298. According to the OFA, local heads of department had received instructions from the Director-General of the Customs and Excise Administration. Apparently, he had recommended that letters stating that the OFA’s convocations were not in compliance with the legislation amounted to formal instructions requiring the responsible representatives to resume their duties. In this regard, the trade union produced an email of 27 October 2003 from the central Customs and Excise Administration to all service chiefs. The email explained how refusals of trade union convocations must be notified to those concerned “in cases where, from now on, trade union convocations had to be refused”. Basically, service chiefs were asked to justify a refusal “giving as grounds the provisions of the Act of 19 December 1974 […] and the provisions of the Royal Decree of 28 September 1984…”. Such refusals must also state that if the person concerned did not resume his duties on the days for which a convocation that does not comply with the legislation has been issued and refused, he must be informed that the application of the Decree of 19 November 1998 will be proposed to the central administration. In the view of the OFA, this email shows that threats and sanctions are on the “control” programme of the Customs and Excise Administration. This email also appears to be evidence that the latter only takes issue with recognized unions while, in this specific field, the law makes no distinction between such organizations and representative organizations.
299. In general, the OFA maintains that a “veritable campaign of counter propaganda has been set in motion, leading [its] members […], warned in advance that the trade union’s recognition would be withdrawn, to resign their membership […]”. As a result of these resignations, which can be numbered in dozens according to the OFA, the proposal to request the recognition of a permanent delegate, which had been envisaged at the beginning of 2003, was set at nought. The complainant organization emphasizes that its responsible representatives are no longer in a position to fulfil their mandates as responsible executives or their missions as trade union delegates.
300. Finally, the OFA refers “by way of documentation” to certain letters sent by the Customs and Excise Administration to leaders of other recognized trade unions (the CASP, SPIP, the Committee for the Defence of Walloon Civil Servants (CDFW)) also subjected, according to the complainant organization, to certain forms of interference by the Government. In its communications, the Administration refuses trade union convocations on the grounds that they do not meet the requirements of the Royal Decree of 28 September 1984. One of these communications indicates that in the event of absence, articles 3 and 4 of the Royal Decree of 19 November 1998 will be applied.
III. Violations of Convention No. 87
301. In conclusion, the OFA asserts that the interpretation of article 82 of the Royal Decree of 28 September 1984 is contrary to the obligations under Convention No. 87, since it allows the Administration to interfere in the internal functioning of public employees’ trade unions, in violation of Article 3, paragraph 1, of the Convention. Finally, the OFA alleges that the Government suspends activities by administrative means, by refusing to grant requests for dispensations from service for trade union purposes which should be granted as of right under article 83 of the Royal Decree of 28 September 1984.
B. The Government’s reply
302. The questions dealt with by the Government will be grouped so as to follow more closely the order in which the OFA’s allegations were presented: (1) a presentation of the applicable law and regulations; (2) the OFA’s arguments concerning the trade union statute; (3) the application of national law in the OFA case; and (4) the alleged violations of Convention No. 87.
303. In its introductory remarks, the Government states that there has been no violation of trade union rights. The Government intends to show that “over a period of more than three years, the OFA has abused the facilities provided by the regulations, namely trade union leave and dispensations from service, without observing the conditions for granting them”. According to the Government, the abuse by the OFA threatened the efficient operation of public services. That is the reason why the authorities concerned informed the OFA that absences of its executives that did not meet the regulatory conditions would be considered as unauthorized absences.
I. Presentation of the applicable law
and regulations
304. The Government emphasizes that it is extremely easy for a trade union to obtain recognition because no conditions are imposed. It adds that there is “no assessment, or even knowledge, on the part of the authority as to what the trade union which requests recognition actually represents”. On 1 January 2004, 31 trade unions, among them the OFA, were recognized as shown in the notices of recognition produced by the Government.
305. The Government observes that the provisions on trade union leave and dispensations from service, articles 81 to 84, are grouped together in Chapter V of the Royal Decree of 28 September 1984. This chapter is also applicable to responsible executives since it is headed “Provisions common to all trade union delegates, with the exception of permanent delegates”. The Government emphasizes that trade union leave and dispensations from service are granted to trade unions without anything in return. Indeed, for periods of absence for trade union purposes during which the trade union delegates are not available to their administrations, their remuneration is not reimbursed to the administrations and such absences do not affect the length of service of those concerned.
306. The Government quotes a passage from the Report to the King (on the draft decree which was to become the Royal Decree of 28 September 1984) on the length of trade union leave and dispensations from service: “the abovementioned trade union leave and dispensations from service shall be granted only for the period strictly necessary for the exercise of the prerogative. However, it is not intended that leave and dispensations from service should be compensated by services in return”. Finally, the Government observes that the Report to the King indicates that the public authorities have the right to check the use of trade union leave and dispensations from service: “by requiring, inter alia, that the list of recognized trade unions, showing their address, telephone number and field of activity, should be published in the Belgian Monitor, the various authorities are enabled to obtain from trade union leaders precise information concerning the actual length of requested trade union leave and dispensations from service”.
307. The Government explains that, since the entry into force of the trade union statute, civil service ministers have had occasion to clarify that no member of staff could be absent continuously or almost continuously on the basis in particular of articles 82 and 83 of the Royal Decree of 28 September 1984. The Government also encloses a Decree of the Council of State of 7 April 1992 which states that “obtaining trade union leave does not seem to exclude the possibility that the authority may exercise a degree of control over the use made of it by the officials concerned”.
308. As regards article 82 applicable to the complainant organization, the Government observes that the narrow interpretation of the terms has been recalled on numerous occasions since 1985, in reply to parliamentary questions, together with the right of the authority to check that the meeting for which trade union leave is granted is indeed a general commission or committee.
309. As regards article 83, the Government indicates the geographical limitation on the exercise of the prerogative for which a dispensation from service is requested. The authority is thus entitled to require a precise indication of the place where the prerogative is to be exercised in order to check that it does in fact fall within the ambit of the committee concerned.
310. The Government emphasizes that it is essential that the authorities concerned require a certain amount of information in the convocations, requests and mission orders, in order to check compliance with the prescribed conditions. The information concerned is that set out in the letter from the General Secretary of the General Administration Service of 25 August 2000, detailed above.
II. The OFA’s arguments concerning the trade
union statute
311. The Government disputes the OFA’s allegation that no measures have been taken to implement the law in relation to trade union leave and dispensations from service. The presentation of the applicable law and regulations by the Government in its reply shows that the legal framework is complete and detailed and, therefore, there is no custom or usage in this matter.
312. The Government does not agree at all with the OFA’s presentation of Belgian law and the basis on which it claims to determine the elements that constitute custom. The Government emphasizes that the OFA’s presentation is “superficial, incomplete and incorrect” and replies to each element identified by the OFA as constituting a custom.
313. The Government observes in general that the term “responsible representative” used by the OFA does not appear in any legislative or regulatory provisions, and assumes that it refers both to responsible executives and permanent representatives.
314. On point (a) of the complaint, the Government observes that it does not seem to flow from international labour Conventions that a trade union can enjoy unlimited trade union leave and dispensations from service and that the public authorities may not check the reality of the grounds invoked by a trade union to obtain such facilities.
315. On point (b), the Government recognizes that responsible executives and permanent representatives have an important role but underlines that their regulation and the order in which they are listed in article 71 of the trade union statute have no relation to the system for granting them trade union leave or dispensation from service. Such persons, staff members of a public service, can only obtain trade union leave and dispensations from service within the limits set out in articles 81 and 84 of the Royal Decree of 28 September 1984. They can only be permanently on trade union leave if their organization requests them to be recognized as permanent delegates and the request is accordingly approved.
316. On point (c), the Government observes that the fact that “responsible executives and their permanent representatives can exercise all the prerogatives accorded to their trade union” (article 72, paragraph 3) in no way alters the fact that they are entitled to trade union leave and dispensation from service within the same limits as would be applicable to any other staff member who did not have the status of responsible executive or permanent representatives. On points (d) and (e), the Government reiterates that only permanent delegates enjoy trade union leave on a continuous basis.
317. On point (f), the Government recalls that the conditions for granting leave under articles 82 and 83 mean that the convocations must also mention the precise place of the work of the commission or committee or the exercise of the prerogative. This information is very important since it allows the authority to check that the trade union delegate has actually exercised the trade union activity during the time required.
318. On point (g), the Government indicates that obtaining trade union leave and dispensation from service “as of right” means that the staff member obtains them provided that the conditions have been fulfilled, and without the authority having to give authorization. Once again, obtaining it “as of right” does not prevent the authority checking compliance with the conditions for granting it. On point (h), the Government reiterates that recognition of a member as permanent delegate at the request of his trade union is the only legal possibility for it to have the services of the person concerned permanently available.
319. On point (i), the Government emphasizes that, as members of bargaining and consultative committees, representative organizations participate in the legislative process in collaboration with the authorities. That is why they are exempt from reimbursing the remuneration of a limited number of permanent delegates. As regards point (j), the Government refers to its comments on points (d) and (e).
320. On point (k), the Government underlines that trade union delegates from representative organizations who are not permanent delegates do not enjoy trade union leave and dispensations from service which would allow them to be continually absent. On the other hand, circumstances justifying the granting of trade union leave and dispensations from service are more numerous for representatives of a representative organization (see for example articles 81 and 84).
321. On point (l), the Government replies that convocations for the purposes of obtaining trade union leave to participate in the work of a consultative or bargaining committee (article 81) are not the only ones that must state the place, date and time. The same applies to leave and dispensations under articles 82 and 83 which are only granted for the necessary period of time. The authority must be able to check that the prescribed conditions are fulfilled and the circumstances claimed correspond to reality.
322. Finally, on point (m), the Government stresses that, according to the principles of freedom of association, the trade union statute allows trade unions to create all the internal bodies that they wish, with the names of their choice. In addition, in conformity with paragraph 3, of Article 6, of Convention No. 151, the trade union statute determines the nature and extent of the facilities granted to trade union representatives, in particular in cases where staff members may obtain trade union leave to participate in the work of commissions and committees created by the trade union. Article 82 is the one which provides for these cases and limits them to commissions and committees which meet exceptionally at high level. In this sense, the mere fact that an organization designates such and such body as a commission or committee is not enough to allow its trade union delegates to obtain trade union leave to participate in meetings of the body in question.
323. According to the Government, the OFA suggests that, as the frequency of meetings of its internal bodies or the number of such bodies is not limited, the amount of trade union leave to participate in meetings of internal bodies is unlimited. In the opinion of the Government, following this line of reasoning would lead to the absurd situation where trade unions would merely have to create dozens of internal bodies meeting every day in order to demand that hundreds of staff members could enjoy trade union leave throughout the year. The Government emphasizes, moreover, that the OFA “has clearly abused” the type of leave prescribed in article 82 by invoking in its convocations the work of various internal bodies on almost all working days throughout the year, and routinely between 9 a.m. and 5.30 p.m.
324. On the subject of the OFA’s allegations relating to the letter from the General Secretary of the General Administration Service dated 25 August 2000, the Government emphasizes that this letter contains only purely legal explanations repeated over 15 years on the subject of the provisions of the trade union statute. The Government also observes that these explanations are in the same vein as the answers to parliamentary questions, including the reply that the OFA considers in compliance with the principles of Belgian law.
III. The application of national law in the OFA case
(a) General explanations of the treatment of trade union convocations issued by the OFA
325. The Government begins by providing details of the constitution of the OFA and its recognition. The OFA’s headquarters is in Namur at the home address of Mr. and Mrs. Raepsaet-Decèvre. In a letter of 31 October 1999, the OFA applied for recognition in all public services, submitting its constitution and the list of responsible executives: Mrs. Decèvre, Federal President, and Mr. Raepsaet, Federal Secretary. In a letter of 20 December 1999, the General Administration Service in the Ministry for the Civil Service informed Mrs. Decèvre that her organization had been granted recognition and enclosed two legitimation cards for its responsible executives. In a letter of 6 January 2000, the OFA notified the names of two other responsible executives, Mrs. Van Brennt and Mr. François, hitherto responsible executives of the CASP, and received their legitimation cards in a letter of 4 February 2000 from the General Administration Service. In a letter of 19 February 2000, the OFA notified the name of a fifth responsible executive, Mr. Paul and received his legitimation card in a letter of 31 March 2000 from the General Administration Service. In a letter of 27 June 2001, the OFA returned the legitimation cards of Mr. François and Mr. Paul.
326. As regards trade union leave and dispensations from service, the Government first recalls that the OFA was informed of the conditions for obtaining such leave, in particular as concerns the information to be included in trade union convocations, in the letter of 25 August 2000 from the General Administration Service.
327. The Government goes on to state that, since its recognition in November 1999, the OFA has addressed numerous convocations to its trade union delegates. The Government encloses with its reply many, if not all, convocations issued from December 1999 to August 2003. The Government underlines that the OFA delegates, staff members in the Customs and Excise Administration, enjoyed a considerable number of days of trade union leave and dispensations from service during that period. The Government prepared a summary of these days for the four trade union delegates, as follows:
_______________________________________________________
Year 2000 (total 556.5 days of absence)
_______________________________________________________
Mrs. Decèvre......202.5........out of 247 working days
Mr. Raepsaet .....164..........out of 247 working days
Mr. François............11.........out of 247 working days
Mr. Paul.................73..........out of 247 working days
______________________________________________________
Year 2001 (total 422.5 days of absence)
_______________________________________________________
Mrs. Decèvre.........165...........out of 247 working days
Mr. Raepsaet.........210..........out of 247 working days
Mr. François.............26............out of 247 working days (before pre-retirement leave
from 1 June 2001)
Mr. Paul.................21.5..........out of 247 working days
____________________________________________________
Year 2002 (total 457 days of absence)
_____________________________________________________
Mrs. Decèvre.........220............out of 248 working days
Mr. Raepsaet.........201...........out of 248 working days
Mr. Paul..................36............out of 248 working days
_____________________________________________________
January to August 2003 (total 321 days of absence)
______________________________________________________
Mrs. Decèvre..........129............out of 164 working days
Mr. Raepsaet..........119............out of 164 working days
Mr. Paul....................73.............out of 164 working days
328. The Government observes, therefore, that for several years, Mrs. Decèvre and Mr. Raepsaet have been on trade union leave almost without a break. Combining these absences with annual holidays and certain possibilities for recovery, these two persons were never at work in their department from 2000 to 2003 and never performed any work. Their convocations were sent to their superior by post or fax.
329. In the course of 2003, urgently alerted by the local management about the validity of the convocations issued by certain trade unions, the central Customs and Excise Administration undertook a detailed analysis for each trade union concerned of copies of trade union convocations in its possession for the years 2001 and 2002 and the period January to June 2003. The sole purpose of this analysis was to check, over a significant period, whether there were really any irregularities and, if so, to determine their magnitude and exact nature. The Government adds that, given their magnitude, the absences of members, in particular those of the OFA, had an impact on the smooth operation of the services.
330. The Government released the results of the analysis of all the convocations issued by the OFA. Firstly, about 40 convocations concerned participation in a bargaining committee or a consultative committee. The heading on the convocation form established by the OFA consists of a reference to article 81 of the Royal Decree of 28 September 1984, whereas only representative organizations sit on such committees, something of which the OFA is not unaware. Secondly, almost all the convocations refer to participation by trade union delegates in day-to-day work within their trade union, namely: meetings of the “federal bureau”, the “reprographic unit”, the “legal unit” and “the special finance unit”. In the opinion of the Government, this is clearly not the kind of work envisaged by article 82 of the Royal Decree.
331. Thirdly, the convocations include several types of trade union activity in the same document (participation in the abovementioned meetings or exercise of trade union prerogatives) and several dates, so that it is impossible for the authority to know exactly which activity corresponds to which date and time. Furthermore, most of the convocations refer to a set of trade union activities spread over a week, from Monday to Friday, from 9 a.m. to 5.30 p.m., which makes it impossible for the administrative authority to verify that the trade union activities mentioned in the convocation actually take place and their duration.
332. Fourthly, with regard to the exercise of trade union prerogatives under article 16 of the Act of 19 December 1974 and article 83 of the Royal Decree of 28 September 1984, the convocations never mention the precise place where trade union delegates convene nor the relevant administrative authorities. Moreover, the Government observes that most of the convocations refer to the OFA headquarters as the place of exercise of the trade union’s prerogatives whereas, by definition, such prerogatives must be exercised in premises occupied by the public services.
333. Fifthly, almost all of the convocations are not dated. Some of them contain anomalies concerning the signature of the responsible executive. Finally, almost all the convocations were issued to obtain a dispensation from service although they refer to work which is not envisaged in article 83 of the Royal Decree of 28 September 1984.
334. The Government underlines that the analysis of the convocations issued by certain trade unions showed that four of them did not comply with the provisions under the trade union statute. The organizations in question, apart from the OFA, are those mentioned in the complaint: the Independent Public Service Federation (CASP), the Committee for the Defence of Walloon Civil Servants (CDFW) and the Public Institutions Staff Union (SPIP). The Government states that these three organizations issue convocations for countless leave and dispensations from service to their responsible executives who are thus continually absent. The convocations contain the same irregularities as those of the OFA.
335. Finally, the Government observes that, at the end of March 2003, and since November 2003, Mrs. Decèvre has been on sick leave while Mr. Raepsaet has returned to work.
(b) Reply to the OFA’s allegations concerning the
Customs and Excise Administration
336. As regards the moral harassment of the “responsible representative” of the OFA behind, inter alia, its letter of 18 July 2000, the Government considers that it refers to the case of Mr. François, responsible executive from January 2000 to June 2001. Mr. François was the subject of a complaint which, following an administrative inquiry, did not give rise to any sanction.
337. As regards the OFA’s allegation concerning the attitude of the Customs and Excise Administration, which for three years did not react to the convocations issued by it, the Government emphasizes that “the OFA could not have been unaware, firstly, that it was clearly abusing leave and dispensations from service and that, secondly, it was preventing the authority from checking compliance with the conditions for obtaining leave by omitting to mention certain information in the convocations”.
338. In the opinion of the Government, by subsequently issuing trade union convocations which did not comply with the explicit conditions set out in the letter of 25 August 2000, “the OFA knowingly acted illegally”. The Government adds that “the OFA was not unaware that the immediate superiors to whom the responsible executives communicated their convocations were local superiors […] who did not have a detailed knowledge of the conditions for obtaining trade union leave and dispensations from service”. The Government also states that, in 2000 and 2001, the administration was concerned not to worsen its relations with the OFA, since it was already dealing with two cases of litigation concerning two of its responsible executives. The Government recalls that finally, given the number of absences, the superiors reacted and alerted the central administration which invited the OFA to comply in future with the provisions of the trade union statute concerning trade union leave and dispensations from service.
339. As regards the allegations of harassment of Mr. Paul, the Government makes the following two points. Firstly, his Administration had to end the conflict of interests between the function of the person concerned (official assigned to the service responsible for the control of products subject to excise duty, essentially alcohol, tobacco and mineral oils) and the occupation of his wife (running an inn). This case was settled by assigning the official to another service, taking into account some of his wishes. Secondly, through the press, the Customs and Excise Administration learned in July 2001 that the official had been arrested and charged with complicity in trafficking cars. His personal file was seized by the examining judge and the case is currently the subject of continuing legal proceedings. The official was transferred. The Government encloses a copy of the transfer decision which, taking into account the presumption of innocence, allows him to continue to work in the central administration and thus avoid the serious consequences of suspension.
340. Concerning the allegation that the Customs and Excise Administration interprets national legislation in a partial manner, the Government points out that the administration has never sought to overlook convocations issued by representative trade unions. However, it has never received any reports from the local management concerning representative trade unions and thus has no knowledge of any abuses committed by them. In addition, the Government provides clarification with respect to the OFA’s comments concerning the minutes of the meeting of 18 September 2003, in particular the remarks allegedly made by one of the administration representatives. According to these clarifications, the remarks were as follows: “The intention of the Administration is not to restrict the dispensations issued by recognized unions in comparison with dispensations issued by representative unions, simply the scope of this meeting is confined to non-representative organizations.”
341. On the allegation that every request for dispensation from service or trade union leave is refused a posteriori, the Government emphasizes that trade union convocations are not refused if they comply with the regulatory requirements and provided that the period covered by the request has not started. Moreover, the Government expresses surprise at this allegation in that the OFA has not submitted any convocation in the name of Mr. Raepsaet and Mrs. Decèvre since November 2003. It also indicates that, in January 2004, several convocations issued by the CASP in proper form were accepted by the Administration. The Government underlines that there is no question of refusing trade union leave, simply that it does not consider that trade union convocations which do not comply with the legal requirements entitle as of right, leave and dispensations.
342. As regards the allegation that the email of 27 October 2003 shows that threats and sanctions are on the Administration’s programme and that it only takes issue with recognized trade unions, the Government reiterates that no irregularities or manifest abuses have been found in the case of the representative organizations. Furthermore, the position of “non-activity”, which stems from articles 3 and 4 of the Royal Decree of 19 November 1998, is applicable to all staff members of the state administrations, irrespective of the nature of the reasons wrongly invoked to justify absence. The position of “non-activity” is thus simply the result of a staff member’s unjustified absence.
343. Concerning the campaign of which the OFA is the alleged victim, the Government states that it has not provided any evidence whatsoever. At no time have the authorities announced the withdrawal of recognition. Moreover, under the provisions of the Royal Decree of 28 September 1984, such withdrawal can only occur for very precise reasons. The Government states that it cannot comment on the alleged number of resignations by OFA members given that Belgian law does not allow the authorities to monitor patterns of membership of a trade union.
344. Finally, the Government emphasizes that the Customs and Excise Administration has correctly applied the trade union statute and that so doing cannot be described as “interference by the Belgian Government”. In the opinion of the Government, the OFA is confusing, on the one hand, the activities of a trade union and, on the other, trade union leave and dispensations from service allowing certain of those activities to be exercised by a staff member during hours of work. By refusing to allow absences which do not meet the conditions of the trade union statute to be covered by leave and dispensations, the Administration does not prevent the exercise of those activities, for example, outside hours of work. The Government emphasizes that the Administration has never asked to know the purpose of trade union activities but only the identity of the authority to which they relate.
345. Concerning the case of Mr. Raepsaet, the Government denies that Mr. Raepsaet was the subject of sanctions because of his trade union activities and underlines that, in its letter to the Minister of Finance, the OFA alleges no such thing. The Government recalls that it simply referred to articles 3 and 4 of the Royal Decree. It also emphasizes that the trade union statute (article 87) protects trade union delegates by providing expressly that they may not be the subject of sanctions for trade union reasons.
IV. Violations of Convention No. 87
346. As to the general reference to alleged violations of Convention No. 87, the Government replies that the OFA has confused, on the one hand, the right of a trade union to organize itself as it sees fit and, on the other, the right of trade union delegates to obtain trade union leave in certain cases.
347. Concerning the allegation of suspension of activities, there is again a confusion between the activities of a trade union and the facilities granted under Belgian law to allow certain of these activities to be exercised by a staff member during hours of work.
348. The Belgian Government emphasizes that the OFA’s argument that Belgian law, to comply with international labour Conventions, should allow responsible executives to be absent at their discretion without any check by the Administration on the reason for such absences does not take account of Article 6 of Convention No. 151. This Article provides that the nature and scope of the facilities to be afforded to the representatives of public employees’ organizations both during and outside their hours of work shall be determined “in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means” (paragraph 3 of the Article). Paragraph 2 of Article 6 provides that “the granting of such facilities shall not impair the efficient operation of the administration or service concerned”.

C. The Committee’s conclusions

349. The Committee notes that this case concerns the granting of time off to representatives of an organization of public employees, which is not a representative organization, to carry out their trade union functions during hours of work.
350. The Committee observes that the complainant organization does not dispute the applicable law but rather the interpretation of that law by the public authorities and its application to that organization. Consequently, the only question that must be examined by the Committee is the conformity of the interpretation of the regulatory provisions on trade union leave and dispensations from service, and their application to the representatives of the complainant organization, with Conventions Nos. 87 and 151 ratified by Belgium and the principles of freedom of association. The Committee adds that this general question includes establishing whether, in the application of the said provisions, the complainant organization has been the subject of discriminatory treatment.
351. The Committee notes that the provisions in question are those of the Royal Decree of 28 September 1984 “in application of the Act of 19 December 1974 organizing the relations between the public authorities and trade unions of employees of those authorities”. More precisely, they are the provisions which determine different categories of trade union delegates (articles 71 to 79 of the Decree) and those concerning the granting of trade union leave and dispensations from service (articles 81 to 84), in respect of the following matters: (1) determination of trade union delegates who may enjoy permanent trade union leave or dispensation from service; (2) the obtaining “as of right” of trade union leave and dispensations from service which in practice raises the question of the justification of a check on requests for leave or dispensations by the authorities to which they are submitted; (3) the conditions for obtaining such leave or dispensations, i.e. the terms “general commissions and committees” (article 82 of the Royal Decree) and the information to be included in requests for leave or dispensations.
352. The Committee recalls that paragraph 1 of Article 6, of Convention No. 151 provides that “facilities shall be afforded to the representatives of recognized public employees’ organizations as may be appropriate in order to enable them to carry out their functions promptly and efficiently, both during and outside their hours of work”. Paragraph 2 of that Article states that “The granting of such facilities shall not impair the efficient operation of the administration or service concerned”. Finally, paragraph 3 indicates that “The nature and scope of these facilities shall be determined in accordance with the methods referred to in Article 7 of this Convention, or by other appropriate means”. In the case of the latter provisions, Paragraph 4 of the Labour Relations (Public Service) Recommendation, 1978 (No. 159) states that “in determining the nature and scope of the facilities regard should be had to the Workers’ Representatives Recommendation, 1971 (No. 143)”. In this respect, and concerning time off, the Committee recalls subparagraph 3 of Paragraph 10, of the Workers’ Representatives Recommendation, 1971 (No. 143), indicating that “Reasonable limits may be set on the amount of time off which is granted to workers’ representatives …”.
353. In the light of the above provisions, the Committee emphasizes that the affording of facilities to representatives of public employees, including the granting of time off, has as its corollary ensuring the “efficient operation of the administration or service concerned”. This corollary means that there can be checks on requests for time off for absences during hours of work by the competent authorities solely responsible for the “efficient operation” of their services. In addition, the nature and scope of facilities are determined at national level. As to the length of time off specifically, express reference is made to “reasonable limits”.
354. The Committee notes that the Royal Decree of 28 September 1984 provides for the granting of trade union leave and dispensations from service and determines the scope by defining the category of trade union delegate eligible for permanent trade union leave. Thus, articles 81 to 84 of the Royal Decree, applicable to trade union delegates other than permanent delegates, provide for the granting of time off, during hours of work, both for representatives of representative trade unions and those of other organizations. The Committee notes that trade union leave and dispensations from service are granted only for the length of time strictly necessary for the exercise of quite specific trade union activities. The Committee notes that it is explicit from articles 73 to 79 of the Royal Decree that only staff members recognized as permanent delegates are permanently on leave so as to be at the disposal of their trade union. The terms of the Royal Decree are thus clear and the Committee finds that it is simply a matter of the application of paragraphs 1 and 3 of Article 6 of Convention No. 151. In addition, the Committee notes that national practice envisages checking requests for trade union leave and dispensations from service by the authorities concerned, which is compatible with paragraph 2, of Article 6, of Convention No. 151. Consequently, the only real question that arises is whether, in practice, the authorities have fixed reasonable limits to the granting of time off during hours of work.
355. The Committee notes that, with respect to non-representative organizations, articles 82 and 83 fix a certain number of limits on the granting of trade union leave and dispensations from service. In this regard, there are common limits: prior submission of the request for leave or dispensation, the personal nature of the request, the limitation of the leave or the dispensation to the time necessary, and signature by a responsible executive. There are also limits specific to each article: participation in general commissions and committees in article 82 and the exercise of the prerogatives listed in article 16 of the Act of 19 December 1974 in relation to a clearly defined committee under article 83.
356. In the light of the information provided to it, in particular the letter from the General Administration Service of 25 August 2000, the Committee notes that the public authorities have specified, in practice, the meaning of these limits. The common limits resulted in the determination of information to be included in requests for leave or dispensations, as follows: date on which the document is created (prior notice); name of the trade union delegate concerned (personal character); place of the meeting or exercise of the prerogative (verification of membership of the committee concerned); date and time of the meeting or exercise of the prerogative (necessary character of the length of time); reference to article 82 or 83 […] and indication of the circumstance (meeting of a clearly defined general commission or committee, prerogative concerned); personal signature of a responsible executive. The Committee observes that this information is purely formal and that each item can be directly and clearly justified under the provisions of articles 82 and 83.
357. Furthermore, the Committee notes that the scope of article 82 was substantively defined. In this regard, the Committee notes that the terms “general commissions and committees” in article 82 have been constantly interpreted as excluding trade union leave for meetings of a frequent or technical character, thus limiting obtaining of such leave to meetings of an exceptional nature, held at the highest levels of the trade union’s structure. The Committee observes that this interpretation is based on the rationale of the distinction between permanent delegates and other delegates who can only obtain leave for clearly defined activities and the time necessary to carry them out. The Committee also finds that the terms “general commissions and committees” are used only for the purposes of granting time off to representatives of organizations of public employees during hours of work. They are thus not a prescription of the number of internal bodies of trade unions or the frequency of their meetings, which it is up to each organization to determine freely.
358. Among the foregoing considerations, the Committee considers that the interpretation of article 82 and the information to be included in requests for leave or dispensations, as determined by the authorities, constitute reasonable limits on the granting of time off during hours of work to representatives of a public employees’ organization which is not representative. Consequently, in itself, the verification of compliance with these limits by the administrative authority could not be construed as interference in the internal functioning of trade unions.
359. In the particular case of the complainant organization, the Committee notes that the letters from the Customs and Excise Administration in August 2003 show that it was not a matter, for that Administration, of generally refusing any request for leave or dispensation submitted by the complainant organization, but that it considered that requests that did not comply with the relevant articles of the Royal Decree and the related practice, could not result in the granting of trade union leave or dispensation from service. The Committee notes, moreover, that the Customs and Excise Administration had asked the complainant organization to justify that each activity mentioned in the convocations represented an activity for which the Royal Decree envisaged trade union leave or dispensation from service. The Committee therefore finds that to obtain the necessary leave and dispensations, and to prevent certain delegates being considered in a position of “non-activity” for unjustified absence, the complainant organization only had to provide such justification or submit new convocations in compliance with the conditions established in the Decree and containing the information set out in the letter of 25 August 2000. Finally, the Committee finds that, according to the Government, the complainant organization has not submitted any convocation since November 2003.
360. In the light of the foregoing, the Committee concludes that the application of the relevant provisions to the leaders of the complainant organization is consistent with Article 6 of Convention No. 151. In addition, the Committee considers that there has been no violation of the complainant organization’s rights under Convention No. 87, since the intervention by the Customs and Excise Administration solely concerned compliance with the conditions for the granting of time off during hours of work and not the operation, management or activities, as such, of the complainant organization.
361. The Committee further finds that the summary of days of trade union leave and dispensations from service of four trade union delegates shows that from 2000 to 2003, the Federal President and the Federal Secretary of the complainant organization, responsible executives but not permanent delegates, were absent for the majority of working days for trade union reasons. The Committee notes in this regard the Government’s observation that, by combining these absences with annual holiday and certain possibilities of recuperation, these two persons did not perform any work at all during the period in question and that that affected the efficient operation of their respective services. Furthermore, the letters from the Customs and Excise Administration in August 2003, the copy of the convocations issued by the complainant organization and the Government’s reply, show that the said convocations were clearly not in conformity with the provisions of the Decree as interpreted by the public authorities.
362. On the question of discriminatory treatment, the Committee notes that the Customs and Excise Administration repeatedly sought to limit the granting of trade union leave and dispensations from service to non-representative organizations and that it had taken no action concerning representative organizations.
363. The Committee first wishes to recall the following two points. Firstly, bearing in mind the remarks on the tenor of the convocations of the complainant organization and the absences of two of its executives between 2000 and 2003, the intervention by the Customs and Excise Administration was justified in this particular case. Secondly, the Committee notes that the central Customs and Excise Administration also intervened in the case of other recognized organizations for similar reasons.
364. As for the allegation as such, the Committee notes that the Government indicates that the Customs and Excise Administration had not received any report from the local management concerning the validity of convocations issued by representative organizations. The Committee also notes that the complainant organization has not provided any evidence whatsoever to show that the public authorities wished to target only requests for leave or dispensations submitted by non-representative organizations.

The Committee's recommendations

365. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not require further examination.

Annex

The following description of the relevant legislative and regulatory provisions is based on texts sent by both the complainant organization and the Government. Where necessary, reference will also be made to the pertinent explanations in the Report to the King concerning the draft decree implementing the Act of 19 December 1974 (which was to become the Royal Decree of 28 September 1984).
The Act of 19 December 1974 on the organization of relations between the public authorities and their employees’ trade unions and the Royal Decree of 28 September 1984 implementing the Act govern the exercise of trade union rights by public employees with the exception of categories of employees and services specified in the Act. These two texts form the basis of what has come to be known by common consent as the trade union statute.
The trade union statute envisages, broadly speaking, two kinds of trade union organization: recognized organizations and representative organizations. Recognized trade unions are those which have obtained recognition in accordance with article 15 of the Act. The Report to the King explains that the sole purpose of the recognition procedure is so that public authorities are aware of trade unions which are active in the public sector. This recognition is granted “automatically” as soon as the trade union has submitted its constitution and the list of its responsible executives. Articles 7 and 8 of the Royal Decree centralize the recognition procedure. Paragraph 2 of article 7 states that the list of recognized trade unions must be published in the Belgian official journal (Moniteur Belge) indicating their name, address, telephone number and scope of activity. A leaflet with the title “The new public service trade union statute”, apparently published at the time when the Act and the Decree came into force (the Act could not come into force without the publication of a royal decree to implement it), states that recognition can occur at several levels: a trade union defending the interests of all categories of public employees applies for recognition to the president of the Combined Public Services Joint Committee; a trade union defending the interests of certain categories of public employees applies for recognition to the president either of the Federal, Community and Regional Public Services Committee or the Provincial and Local Public Services Committee.
Article 16 of the Act sets out the prerogatives enjoyed by recognized trade unions: “to intervene with the authorities in the collective interest of the personnel that they represent or the individual interest of an employee” (16.1); “to assist at his request an employee called to justify his actions to the administrative authority” (16.2); “to affix notices in the premises of public services” (16.3); “to receive documentation of a general character concerning the management of the personnel that they represent” (16.4).
Representative trade unions are those which satisfy a certain number of criteria established by law, in particular concerning the minimum membership. Some of these organizations are required to apply for recognition. Only representative organizations participate in bargaining and consultative bodies. Bargaining bodies are, firstly, general committees (under article 3 of the Act, there are three: the Federal, Community and Regional Public Services Committee, the Provincial and Local Public Services Committee, and the Combined Public Services Joint Committee) and, secondly, sectoral and individual service committees (article 4 of the Act).
Article 17 of the Act states that the prerogatives of representative trade unions are: “to exercise the prerogatives of recognized unions” (17.1); “to collect trade union dues in places of work during hours of work” (17.2); “to attend competitions and examinations organized for employees…” (17.3); “to hold meetings in administrative premises [during hours of work]” (17.4).
Article 18 indicates that it is up to the King to establish: (1) “the rules applicable to trade union delegates by virtue of their activity within the public services …”; (2) “the rules concerning reimbursement to the authority by trade unions of amounts paid to certain of their delegates as staff members”. Representative trade unions may be exempted “fully or in part” from such reimbursement. Title VI (articles 71 to 90 of the Royal Decree of 28 September 1984) establish a number of rules concerning “persons participating in trade union life”.
Article 71, Chapter I “Listing of trade union delegates” describes what is covered by the general concept of “trade union delegate”:
– responsible executives of a trade union (71.1);
– permanent representatives of the responsible executives (71.2);
– permanent delegates are “staff members who regularly and continuously defend the professional interests of the staff and who, in that capacity, are recognized and placed on leave” (71.3);
– members of the delegation of an organization represented in a bargaining or consultative committee (71.4);
– persons designated by a trade union to exercise certain of the prerogatives set out in articles 16 and 17 of the Act (71.5);
– “staff members who participate in the work of general commissions and committees formed within a trade union” (71.6);
– delegates of a trade union to the Committee on Verification of a Trade Union’s Representativeness (71.7).
The Report to the King explains that “in practice, the same person can fall into different categories of trade union delegate listed”.
Under article 72, Chapter II “Responsible executives and their permanent representatives”, these two categories of trade union delegates are issued with a legitimation card to facilitate their interventions with the public services. The Report to the King explains that “each organization freely designates its responsible executives” and that the legitimation card “serves only to allow responsible executives (and likewise other delegates who have received such a card) to prove, if necessary, their trade union office to the authorities with which they intervene on an exceptional basis”. Paragraph 3 of article 72 states that “equipped with their card, responsible executives and their permanent representatives can exercise all the prerogatives accorded to their trade union”.
Articles 73 to 79, Chapter III “Permanent delegates” sets out the provisions applicable to this category of trade union delegates. The Report to the King emphasizes that permanent delegates “leave their administration and are placed at the disposal of their trade union … they are deemed to be on active service”. The latter means, inter alia, that permanent delegates retain their rights in terms of remuneration, cost-of-living and in-grade increments. They must first apply for recognition as permanent delegates by the authority in which they are employed. They also receive a legitimation card. Article 77, paragraph 1, indicates that permanent delegates are “on trade union leave as of right”. Paragraph 4 of the article states that “the trade union leave of the permanent delegate terminates at his request, or when his trade union so decides, or when his recognition is withdrawn”. Finally, under paragraph 1 of article 78, remuneration, allowances, indemnities received by permanent delegates must be reimbursed by their trade unions.
Articles 81 to 84, Chapter V “Provisions common to all trade union delegates, with the exception of permanent delegates” set out the rules for trade union leave and dispensation from service. They read as follows:
Chapter V. Provisions common to all trade union delegates, with the exception of permanent delegates.
Article 81, section 1. On prior presentation to his superior of a personal occasional convocation or a permanent mission order, issued by a responsible executive, a staff member-trade union delegate as defined in article 71, paragraph 1 or 2, shall obtain, as of right and for the length of time necessary for that purpose, trade union leave to participate in the work of bargaining and consultative committees. For responsible executives, the abovementioned convocation or mission order must be issued by another responsible executive.
On prior presentation to his superior of a personal occasional convocation or a permanent mission order, issued by a responsible executive, a staff member-trade union delegate as defined in article 71, paragraph 4, shall obtain, as of right and for the length of time necessary for that purpose, trade union leave to participate in the work of bargaining and consultative committees in his service.
Section 2. On prior presentation to his superior of a personal occasional convocation or a permanent mission order, issued by the president of a bargaining or consultative committee, a staff member shall obtain, as of right and for the length of time necessary for that purpose, a dispensation from service to participate in the work of that committee.
Section 3. The convocations and mission orders envisaged in sections 1 and 2 shall mention the bargaining or consultative committee in whose work the staff member is invited to participate. In addition, occasional convocations shall indicate the place, date and time of meetings.
The president of the bargaining or consultative committee concerned shall receive, from the staff members’ superior, a copy of the convocations and mission orders envisaged in section 1.
He shall notify the names of staff members absent from meetings to their superior.
Article 82. On prior presentation to their superior of a personal convocation issued by a responsible executive, staff members shall obtain, as of right and for the length of time necessary for that purpose, trade union leave to participate in the work of general commissions and committees formed internally within the trade union.
Article 83, section 1. On prior presentation to his superior of a personal mission order or delegation, issued by a responsible executive, a staff member shall obtain, as of right and for the length of time necessary for that purpose, a dispensation from service to exercise one of the prerogatives listed in articles 16(1), (2) and (3); and 17(1), (2) and (3) of the Act.
The said prerogatives may only be exercised by the staff member in connection with the committee for the sector or particular committee for the service in which he is employed.
Section 2. On prior presentation to their superior of a personal mission order or delegation, issued by a responsible executive, all persons other than those envisaged in section 1 may exercise the prerogatives set out in that paragraph.
Article 84. On prior request by a responsible executive addressed to the competent authority, except where absolutely incompatible with the exigencies of the service, staff members shall obtain, for the length of time necessary for that purpose, a dispensation from service to participate in meetings organized on the premises by representative trade unions.