Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2529 (Belgium) - Complaint date: 16-NOV-06 - Closed

Allegations: The complainant organization alleges difficulties in determining its representative trade union status, that it cannot sit on bargaining and consultation bodies to defend the interests of its members or participate in collective bargaining processes, despite its representativity, partly due to the applicable legislation

1. 425. The complaint is contained in a communication from the Professional Association of Maritime Pilots (BvL) of 16 November 2006.
2. 426. The Government sent its observations in a communication dated 29 August 2007.
3. 427. Belgium has ratified Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), 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

• I. Background
  428. 428 The BvL is a non-profit association, founded according to the provisions of the Act of 27 June 1921 on non-profit associations and international non-profit associations and foundations. The Association, whose articles of association were published in the Moniteur Belge on 20 July 2000, is the result of the merger of two pilots’ associations: the Association of State River Pilots (VSRL) and the Association of Sea and Coastal Pilots (VZKL). Despite its recent legal establishment, the BvL has in practice a long tradition of defending the professional interests of maritime pilots. The BvL maintains that it is the only organization defending the professional interests of Flemish maritime pilots.
  429. 429 Under the Special Act of 8 August 1980 on institutional reform, the regions are responsible for pilotage and beaconing to and from their ports, as well as rescue and towing services at sea. The Special Act accordingly transferred the state pilotage service, established in 1839, to the regions. As a result, the Flemish Region has its own public pilotage service. Moreover, maritime pilots have the status of public employees of the Flemish Region since, by virtue of section 5(1) of the Pilotage Decree of 19 April 1995 respecting the organization and provision of pilotage services in the Flemish Region, the piloting of vessels in the waters defined by the Decree can only be carried out by the pilotage service of the Flemish Region.
  430. 430 However, the BvL indicates that, despite the responsibility of the Flemish Region for the organization of the pilotage service, which means that it is the employer of the pilots, the issue of consultation and collective bargaining with employees’ trade unions remains under the competence of the federal authorities, in accordance with the Federal Act of 19 December 1974 organizing relations between public authorities and the unions of their employees.
  431. 431 The Ministry of the Flemish Community covering maritime ports has had a department since 2001 for the autonomous administration of the pilotage service (DAB-L), which is responsible for providing pilotage services and advice to maritime vessels. The DAB-L was established by a decree issued by the Flemish Parliament on 30 June 2000 and has, in the same way as all autonomous departments, a certain independence in its financial and budgetary administration and personnel management, particularly for recruitment and related expenditure. A Flemish Government decision of 15 December 2000 concerning the organization of the DAB-L explicitly acknowledges its competence for personnel management (section 2(2)). However, the BvL adds that the DAB-L is not an independent legal entity and that its employees are therefore public employees of the Flemish Region.
  432. 432 The BvL contends that this competence for personnel management necessarily includes the selection of the social partners that are to participate in collective bargaining with the public employer. In the case of bargaining on the conditions of employment of maritime pilots, it would be expected that the BvL, an organization with a membership that includes over 80 per cent of serving Flemish maritime pilots and 60 per cent of DAB-L employees, would be actively involved. The BvL denounces the fact that it has never been able to participate in official collective bargaining, even when the issues specifically relate to maritime pilotage.
  433. 433 The BvL affirms that it is a trade union, recognized in accordance with the Act of 19 December 1974 organizing relations between public authorities and the unions of their employees. Under the terms of this Act, to be recognized, a trade union has to submit to the competent authorities a copy of the statutes of the association and a list of its officers. Once the trade union has met these requirements, it obtains official recognition. The public authorities cannot challenge such recognition. By virtue of the Royal Decree of 28 September 1984, issued under the Act of 19 December 1974, once a trade union is recognized it should have the right: to intervene with the public authorities in the interest of the employees whom it represents or in the interest of an individual member; to assist at her or his request an employee required to justify her or his acts to the administrative authority; to post notices in the premises of the public service in question; and to receive general information concerning the management of the personnel that it represents (section 9).
  434. 434 However, according to the BvL, its legal recognition and the rights granted to it are insufficient for a union to be able to participate in collective bargaining. It also needs to be recognized as being “representative”. Thus, the BvL indicates that, despite its legal status as a trade union, the law does not grant it the right to participate in collective bargaining, even where such bargaining specifically relates to maritime pilotage.
  435. 435 The BvL observes that the Act of 19 December 1974 obliges the public authorities to participate in preliminary negotiation or consultation with the trade unions on all measures relating to the terms and conditions of employment of employees. The BvL uses the term “collective bargaining” to describe these negotiations and prior consultations. The Act adds that such collective bargaining and consultation shall take place in committees on which representative trade unions are represented. However, the Act establishes a number of conditions and criteria to define the notion of representative status, which vary according to the committee in question.
  436. 436 The bargaining committees, as laid down in the Act of 19 December 1974, may be at the federal, community, regional or sectoral levels. In accordance with section 3 of the Act, general committees are established at the federal, community and regional levels. These committees are: the Combined Public Services Joint Committee (Committee A), the Federal, Regional and Community Public Services Committee (Committee B) and the Provincial and Local Public Services Committee (Committee C). Bargaining in these committees covers general measures relating to the employees represented by the various sectoral committees. The sectoral committees are set up by the authorities and are solely competent in relation to the matters for which they have been established. The BvL cites the case of maritime pilots, who are employees of the Flemish Region and are covered by Sectoral Committee XVIII, which deals with all matters relating to employees of the Flemish Community and the Flemish Region.
  437. 437 The Act of 19 December 1974 also provides that the authorities may determine the membership and operation of consultation committees (section 10 of the Act). The Royal Decree of 1984 defines four types of consultation committees: high consultation committees (HCCs), basic consultation committees (BCCs), intermediate consultation committees (ICCs) and specific consultation committees (sections 35, 36 and 40 of the Royal Decree).
  438. 438 The BvL indicates that, although the criteria relating to the representative status of trade unions are intended to allow their participation in the bargaining and consultation committees described above, these criteria vary according to whether they are general bargaining committees, sectoral or consultation committees.
  439. 439 With regard to general bargaining committees, the Act of 19 December 1974 provides that trade unions that are considered to be representative and are entitled to be represented on the Combined Public Services Joint Committee, the Federal, Regional and Community Public Services Committee, and the Provincial and Local Public Services Committee are those which operate at the national level, defend the interests of all categories of public employees and are affiliated to a trade union represented on the National Labour Council (section 7 of the Act). The BvL also maintains that trade unions that operate at the sectoral level, as the BvL does, and only defend the interests of a single category of employees, are therefore by definition excluded from participation in general bargaining committees. The BvL also notes that, as the National Labour Council only covers the private sector, the requirement to be affiliated to a union organization that sits on the National Labour Council as a prerequisite for participating in a body covering the public sector is not logical.
  440. 440 The BvL adds that, in terms of the representation criteria taken into account to authorize participation in sectoral committees, such as Sectoral Committee XVIII covering the Flemish Community and the Flemish Region, the Act of 19 December 1974 requires: (1) official recognition; (2) the defence of the interests of all categories of personnel in a department covered by the committee (which means that only trade unions that defend the interests of all the employees of the Flemish Community and the Flemish Region can be members of Sectoral Committee XVIII); (3) affiliation to a national trade union; and (4) representation of at least 10 per cent of the employees covered by the sectoral committee or the capacity to demonstrate that the organization has the largest membership among those which do not have a seat on the Federal, Regional and Community Public Services Committee (Committee B). Taking into account these representation criteria, the BvL, which promotes the interests of only one category of public employees and does not operate at the national level, is excluded from the meetings of Sectoral Committee XVIII. The BvL adds that, as the representation criteria for consultation committees are the same as for sectoral committees, it is also excluded from those bodies.
  441. 441 The BvL concludes that a trade union which furthers the interests of only one category of public employees and does not have national representation cannot meet the criteria imposed by the Act of 19 December 1974 and therefore cannot be represented on any committees. These representation criteria have led to a situation in which only the three “traditional” trade unions are represented on the bodies in which collective bargaining is carried out between public authorities and their employees. The BvL observes that, under Belgian legal doctrine, this situation may be described as a political/trade union cartel, far removed from real trade union representation.
• II. The representative status of the BvL
  442. 442 The complainant organization refers to the figures provided by the public authorities in support of its claim that it represents 80 per cent of the pilots who are in active service and 60 per cent of the personnel. Of a list of 450 officials, of whom 340 are maritime pilots, the 2006 figures show that 269 pilots are members of the BvL. The BvL concludes that, based on the objective criterion of the number of members, it is the most representative organization, not only of maritime pilots, but also of all DAB-L personnel. The BvL denounces the fact that certain organizations are considered to be representative by the authorities, but hide behind the lack of transparency of the traditional organizations so as not to divulge the exact numbers of their members. These organizations, such as ACV Transcom, ACOD and VSOA, according to the complainant organization, only represent a marginal fraction of maritime pilots. The BvL considers that ACV Transcom and ACOD only represent 20 per cent of all DAB-L personnel, and that only two pilots are members of VSOA. And yet these organizations enjoy “representative” status as they operate at the national level and in all sectors. The lack of representation of the maritime pilotage service has led to protests by certain pilots, including collective action, against the marginalization of the BvL in the collective bargaining process. The BvL says that pilots feel their interests are not adequately promoted and protected in the various committees.
• III. Collective labour relations in the public service
  443. 443 Despite the fact that the Flemish authorities advocate full participation by the social partners in collective bargaining within the DAB-L, the BvL is not represented; and yet collective bargaining should take into account the specific characteristics of maritime pilotage. The participation of the BvL in collective bargaining would contribute to the achievement of a more serene social climate in the DAB-L since up to now, to ensure that its voice is heard, the only effective means at its disposal has been to call strikes. The authorities nevertheless recognize the specific characteristics of the occupation in several respects. This is demonstrated by the very existence of the DAB-L and the establishment by Protocol No. 18.46 of the Mixed Workgroup on Pilots (GWL), on which the BvL is represented. However, the GWL is only a body resulting from an agreement between the authorities and the unions, and does not therefore have a statutory role. Although Protocol No. 18.46 envisages that certain matters may be addressed in the GWL, it clearly establishes that formal collective bargaining is not carried out in the GWL, which therefore fulfils a role of preparatory discussion. In accordance with the collective bargaining procedures established by law, any agreement reached by consensus in the GWL has to be reviewed in more formal bodies on which the complainant organization is not represented. The BvL adds that its participation in the discussions of the GWL does not mean that it is able to participate actively in the collective bargaining process, as it is left out of the formal bargaining and consultation bodies.
  444. 444 The BvL adds that it is represented on another informal consultation body, namely the DAB-L/BvL Consultation Forum. However, only the management of the DAB-L and the BvL’s representatives participate in this Consultation Forum, and not the other unions. The Forum has no statutory basis and cannot therefore directly influence the decisions taken in the context of a formal collective bargaining process. Accordingly, even though the discussions held in the Forum may cover a number of issues relating to maritime pilotage, the BvL emphasizes that the existence of the DAB/BvL Consultation Forum does not constitute an alternative to its full participation in the formal collective bargaining process envisaged by law.
  445. 445 The BvL recalls that there are many consultation bodies in the field of maritime pilotage. It refers to Sectoral Committee XVIII, which covers all the employees of the Flemish Community and the Flemish Region and on which representative organizations are represented. Currently, the only organizations to be considered representative are ACV Transcom, ACOD and VSOA. Sectoral Committee XVIII is authorized to initiate bargaining on measures of a general nature. These measures may relate to the conditions of employment of all the employees of the Flemish Community and the Flemish Region, including maritime pilots. Although the Pilotage Workgroup has competence over all consultations relating exclusively to the personnel of the DAB-L, certain matters, and particularly those relating to the work schedules and rotation rolls of pilots, are prepared by the GWL. After discussion in the GWL, proposals on which consensus are reached are submitted for approval to the Pilotage Workgroup. However, according to the BvL, the so-called “representative” organizations refuse to cooperate in a constructive manner in the GWL, which results in its work being sabotaged. By way of illustration, the BvL indicates that the VSOA has always refused to be bound by Protocol No. 18.46 establishing the GWL and refused to sign a declaration dated 1 April 2005 reaffirming the competence of the GWL and calling for constructive cooperation. Similarly, the ACOD indicated that it no longer wished to participate in the work of the GWL (communication of 15 April 2004, provided with the complaint).
  446. 446 In parallel with Sectoral Committee XVIII, a High Consultation Committee (HOC) for the Flemish Community and the Flemish Region has been established in accordance with the Act of 19 December 1974 and the Royal Decree of 28 September 1984. Issues relating to maritime pilotage are discussed in these bodies at the level of the Pilotage Workgroup. The Pilotage Workgroup covers all DAB-L personnel. It is composed of delegates representing the public authorities and of unions represented on the Sectoral Committee, and is chaired by the departmental chief of the DAB-L. The BvL says that it is excluded from the work of this body, which is nevertheless entirely competent in the BvL’s field.
  447. 447 The BvL finally notes that it is also excluded from Basic Consultation Committee 6.2, which covers issues relating to the administration of waterways and maritime affairs. The BvL regrets that this latter committee, established by decision of the Flemish Government of 28 July 2005, only authorizes the participation of the three traditional unions, ACV Transcom, ACOD and VSOA, even though they do not adequately represent the personnel engaged in the administration of the waterways and maritime affairs.
  448. 448 The BvL indicates that, in view of this systematic exclusion, it sometimes deliberately attempts to participate in the meetings of the bargaining and dialogue bodies to which it has not been invited. It cites the example of a meeting on 15 December 2004 of the Pilotage Workgroup, which it sought to attend. However, even before the meeting began, the President of the Pilotage Workgroup ordered the representatives of the BvL to leave the room on the grounds that their presence was in breach of the federal legislation respecting collective bargaining between public authorities and their personnel (the Act of 19 December 1974 and its implementing Decrees of 28 September 1984 and 29 August 1985). Despite recalling that the BvL represented 85 per cent of pilots and two-thirds of the personnel of DAB-L and requesting once again that the BvL be able to participate in the meeting, the BvL’s representative met with a firm refusal. The BvL claims that the Flemish authorities are taking refuge behind inadequate federal legislation in refusing it access to the meetings of the Pilotage Workgroup.
  449. 449 The BvL adds that maritime pilots who become members of the BvL suffer financial disadvantage in relation to employees who are members of one of the three “traditional” unions. The Act of 1 September 1980 allows the authorities to reimburse the trade union dues of certain employees. Under section 2 of the Act, a union has to be considered “representative” to claim reimbursement for its members. The criteria for representative status are those set out in the Act of 19 December 1974. The upshot is that the public authorities grant financial advantages to unions on the basis of arbitrary criteria relating to representative status. The BvL therefore calls for the reimbursement of trade union dues not to be solely confined to the three “traditional” unions, but for the BvL also to be included.
• IV. Violation of ILO Conventions
  450. 450 In its communication, the BvL recalls the principles set out in Conventions Nos 87 and 98 and observes that the practice in Belgium is in stark contrast with the obligation contained in these Conventions for the full development of collective bargaining. The BvL further recalls that Belgium has also ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), which is applicable to the personnel responsible for the public maritime pilotage service. It recalls that Convention No. 151 provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees’ organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters (Article 7). It adds that Convention No. 151 does not exclude the possibility for public authorities to establish criteria for representative status in determining the organizations that participate in collective bargaining. However, these criteria should be objective and pre-established so as to avoid abuse. The BvL notes that the Committee on Freedom of Association has already had occasion in earlier cases to indicate that the criteria of representativity applied in Belgium do not meet the condition of objectivity. According to the BvL, it would appear that the authorities have sought to ensure the exclusive participation at all levels of the three “traditional” trade union organizations in all collective bargaining processes, while excluding sectoral organizations such as the BvL.
  451. 451 With reference to the Collective Bargaining Convention, 1981 (No. 154), the BvL notes that its scope of application includes not only all branches of economic activity, but also the public sector. The principle of the promotion of collective bargaining is also found in Collective Bargaining Recommendation, 1981 (No. 163), which further specifies that, in countries in which the competent authorities apply procedures for recognition with a view to determining the organizations to be granted the right to bargain collectively, such determination should be based on pre-established and objective criteria with regard to the organization’s representative character, established in consultation with representative employers’ and workers’ organizations (Paragraph 3). Moreover, under the terms of Paragraph 4 of the Recommendation, collective bargaining should be promoted at any level. The BvL calls for it to be possible to engage in collective bargaining, for example, at the level of the DAB-L, where it is the most representative organization.
  452. 452 In its complaint, the BvL recalls the numerous cases in which the Committee on Freedom of Association has criticized the Government of Belgium on the issue of the representative nature of unions which have been refused certain rights on the grounds that they were not representative under the terms of the national legislation. The BvL notes that the Committee on Freedom of Association has been expressing reservations since 1962 in relation to the criteria applicable in Belgium, in accordance with which trade union organizations have to operate at the national and interoccupational levels to be considered representative. The conclusions of the Committee on Freedom of Association in these latter cases recalled that the law in Belgium has been the subject of criticism for several years and needs to be amended. Nevertheless, the Belgian authorities have always ignored the recommendations of the Committee on Freedom of Association.
  453. 453 The BvL adds that the minimalist interpretation given by Belgian law to collective bargaining in the public sector is in breach not only of ILO Conventions, but also of the other international instruments to which Belgium is party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
  454. 454 In conclusion, the BvL observes that its exclusion from formal collective bargaining bodies is based on flawed criteria of representativity. The conditions envisaged by the law to determine the representative nature of unions result in the de facto exclusion of unions representing specific categories of employees from the collective bargaining process, even where such organizations are the most representative in their category, as is the case of the BvL. In the view of the BvL, its presence in informal dialogue bodies and its absence from the collective bargaining process in the formal bargaining bodies envisaged by the law constitute discrimination.
  455. 455 The BvL requests the Committee on Freedom of Association to:
  1. (1) recognize the BvL as the most representative organization in the field of maritime pilotage;
  2. (2) recognize the BvL’s right to be represented on bargaining and consultation committees, and therefore to be treated as a fully fledged partner in the collective bargaining process;
  3. (3) find that the Act of 19 December 1974 organizing relations between public authorities and the unions representing their employees, and its implementing decrees, are contrary to Belgium’s international obligations;
  4. (4) accordingly request the Government to revise the legal regime that is in force to bring it into conformity with the recommendations of the Committee on Freedom of Association;
  5. (5) recommend the authorities, pending the amendment of the Act of 19 December 1974, to authorize the BvL to participate in negotiation forthwith in bargaining and consultation bodies, at all levels; and
  6. (6) order that the trade union bonus system is not reserved for the three “traditional” union organizations and is extended to the BvL.

B. The Government’s reply

1. 456. In a communication dated 29 August 2007, the Government sets out to show that there has been no breach of trade union rights, as alleged by the BvL. In its introductory remarks, the Government indicates that it does not share the BvL’s conclusions regarding the need to amend Belgian legislation, particularly as such an amendment would not be justified by the need to place a union on an equal footing with other unions when the union in question represents between 60 and 80 per cent of the personnel in a service with fewer than 500 employees out of a sector that includes over 44,000 workers. The Government notes that the provisions of laws and regulations challenged by the BvL have been applicable for over 20 years in a sector employing over 500,000 persons.
2. 457. The Government adds that, in the same way as around 30 other unions that are only recognized, the BvL enjoys the capacity to intervene with the public authorities in the collective interest of the workers whom it represents. It observes, however, that up to now no other recognized organization has challenged the legislation respecting the representative nature of unions. The Government considers that the absence of complaints is an indication that almost all recognized unions are of the view that they cannot claim the same prerogatives as trade unions which defend all categories of public sector workers, particularly since the higher-level public sector unions also ensure a certain convergence with the main lines of trade union action in the private sector, with such action being led by the interoccupational trade union federation to which they are affiliated.
3. 458. The Government indicates that it is frequently approached by small organizations which claim trade union representation for a limited category of workers in a particular occupation or sector. However, the claim to representative status often conceals the pretext of obtaining equal advantages. This situation occurs sporadically in the public sector, where competition and factions emerge in certain occupations. The Government notes that the tactic of opposing other workers’ organizations and dominance over a particular sector gives rise to conflict within work groups and also to collective disputes. This can seriously disturb social peace, as it can lead to an escalation of conflict with other workers and to the citizens and users of a service or economic sector being held hostage. The Government adds that such a tactic can be defined in pejorative terms as “corporatism”. It observes that in the private sector the tendency towards corporatism is very limited. Sectoral federations express interoccupational solidarity through their federation into broader organizations which can provide a basis for coherent social dialogue and trade union action through their interoccupational and national structures, with all the related advantages in terms of trade union expertise and participation in overall socio-economic policy-making.
   • I. General considerations
4. 459. The Government observes that in the public sector there are, on the one hand, representative organizations that enjoy full capacity in terms of interoccupational status, numerical representation and fields of expertise. This status is conferred by their durability, the variety of areas in which they are involved, their level of resources and, in quantitative terms, the size of their membership. There are also organizations that defend specific categories which are not by vocation interoccupational and which are recognized for the specific field that interests them. Coordinated consultation therefore takes place at two levels and machinery exists within the various institutions offering a margin of manoeuvre outside the context of the well-defined bargaining process in the various sectors.
5. 460. The Government considers that coherence can be seen between the public and private sectors at the interoccupational level. This allows exchanges between labour law as it applies to the private sector and that of the public sector. Representative organizations at the interoccupational level participate in the work and enjoy the prerogatives of the National Labour Council, where decisions are taken by unanimity, especially for the adoption of collective labour agreements. These relate to major social programmes, such as those based on interoccupational agreements or the application of European social standards. Policies adopted at the level of the National Labour Council may provide orientation for specific negotiations in the public sector. Standards relating to representative status cannot therefore be watered down, which might give rise to obstacles in the functioning of the National Labour Council and destroy the system of social dialogue.
6. 461. The Government is of the view that representative status cannot be limited to quantitative criteria, nor to interoccupational coverage. Qualitative elements are also important and provide the basis for the mutual recognition that is essential between the partners in social dialogue: the stability of the organization, the reality of its presence and action, and also the externalization of the work of its statutory bodies and its outside relations in terms of contacts and information.
7. 462. According to the Government, the Belgian system is recognized for the balance that is sought between the specific interests of a subsector and the overall socio-economic interests of the world of work. Prerogatives therefore differ and organizations with a lower representative status are recognized for a series of functions germane to common categories of trade union action. In contrast, representative organizations are called upon to discharge functions related to the interoccupational status that they have attained and in relation to their responsibilities in numerical terms and the confidence that they have been able to build up and confirm over time. The flexibility in the application of this system, for example, permits the participation of a recognized organization in a workgroup, even if it is excluded from a bargaining committee. Recognized organizations enjoy certain prerogatives, including those of representing and defending their members. Even though the absence of monopoly and the affirmation of pluralism ensure that the debate is enriched, a measured approach to pluralism also means that it is possible to avoid fragmentation and irresponsible anarchic tendencies. In the Government’s view, the interests of workers are therefore appropriately safeguarded.
   • II. Collective labour relations in public services
8. 463. The Government recalls the multiplicity of authorities in Belgium which have their own public services. A distinction therefore has to be made between the federal public service, the public services of federated entities (communities and regions) and the public services of local entities (provinces, communes and intercommunal authorities). Subject to certain general provisions established at the federal level, federated authorities enjoy autonomy in relation to their public services. Moreover, institutions have been established within these public services which in turn enjoy a certain autonomy, in the same way as autonomous enterprises at the federal level (postal services, railways, telecommunications) and have their own personnel. Certain specific groups of employees at the federal level are covered by specific federal legislation (the police, the army, magistrates). There is therefore a plethora of legal provisions respecting the status of public service personnel.
9. 464. However, in terms of the legal provisions governing relations between authorities and trade unions, the great majority (70 per cent) of employees in national public services are covered by the same legal regime that is established by the federal State. This regime covers over 500,000 employees in most federal, community or regional public services, as well as provincial and local public services. Separate regimes are few in number and cover a total of 219,000 public employees (persons not covered by trade union rules, services covered by collective agreements and joint commissions in the private sector, and services with specific trade union rules).
10. 465. The Government indicates that the Act of 19 December 1974 and its implementing decrees established a new system of collective labour relations as from 1985. In accordance with the trade union legislation, the authority is under the legal obligation to submit the general measures envisaged relating to its employees to a procedure of bargaining or consultation with the representative unions (depending on the objective and significance of the measures). These preliminary bargaining and consultation procedures with the unions are substantive formal requirements, and failure to comply with them impinges upon the legal status of any measure adopted without negotiation or dialogue. A breach of these procedures may lead to the intervention of the responsible authority, the Council of State or the courts.
11. 466. The outcome of bargaining is adopted in a protocol which has the weight of a political commitment by the authority to set out the agreed measures in laws or regulations. However, such protocols are not legally binding on the authority. The dialogue process results in a reasoned opinion which is intended to enable the authority to understand the favourable or unfavourable opinion of the unions.
12. 467. Bargaining is carried out in bargaining committees, namely the Combined Public Services Joint Committee (Committee A), the Federal, Regional and Community Public Services Committee (Committee B), the Provincial and Local Public Services Committee (Committee C) and sectoral and specific committees. These committees are composed of a delegation representing the authority and delegations of the representative unions. The delegation representing the authority has to be composed of persons who exercise real responsibility over the policy to be followed in the public services concerned and who are empowered to conclude agreements that are politically binding on the authority. Under sections 21(3) and 43 of the Royal Decree of 28 September 1984, each union freely determines the composition of its delegation to bargaining committees. The Government also refers to the report of the King issued prior to the Order, according to which the intention is to leave the broadest possible freedom to unions in the composition of their delegations, which may even be composed of persons from outside a public service or of staff members from any public service. Circular No. 270 of 19 November 1985 also provides that the authority may not intervene in the composition of union delegations, and there is no provision envisaging the prior communication of the names of the delegates designated by the unions as members of committees. The Royal Decree of 1984 only sets one limit, namely that delegations shall be composed of no more than three members for each union.
13. 468. In the consultation committees, the members of the authority’s delegation must be empowered to make commitments on behalf of the public authorities concerned. The composition of union delegations is governed by the same texts as in the case of bargaining committees.
14. 469. The Act of 19 December 1974 establishes the principle that only representative organizations may be represented on bargaining and consultation committees. These organizations have to meet a number of conditions and criteria to be considered representative. With regard to Committees A, B and C, section 7 of the Act provides that the organization must operate at the national level, defend the interests of all categories of personnel and be affiliated to a union organization represented on the National Labour Council (the General Federation of Labour of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB)). The Government adds that three union organizations are currently representative in accordance with these provisions and can therefore sit on the three general bargaining committees: the General Confederation of Public Service Personnel (CGSP), the Federation of Christian Public Service Trade Unions (FSCSP) and the Free Public Service Trade Union (SLFP). Organizations that are members of Committees B and C are automatically considered to be representative for the purposes of participation in sectoral committees, specific committees and distinct specific committees.
15. 470. The representative status of organizations is examined every six years by an independent commission – the Commission to Monitor the Representative Status of Public Sector Trade Unions. The Commission is composed of a President and two members appointed by the King from the judiciary at the joint proposal of the Prime Minister, the Minister of Justice and the Minister of the Public Service. The Royal Decree of 28 September 1984 limits to the strict minimum the rules for the operation of this Commission, which has to make an autonomous and fully independent assessment of the evidence submitted. Public services make their staff lists available to the Commission. The unions provide evidence that a sufficient number of their members have paid their union dues to demonstrate that they meet the minimum membership requirement. The Commission is an administrative authority and its decisions have the status of administrative acts subject to procedural guarantees of a jurisdictional nature. They may be struck down on appeal by the Council of State.
16. 471. The Government adds that, on the basis of the most recent examination of their representative status (2003), and an appeal for a recount (2005), the CGSP, the FSCSP and the SLFP have been determined to be representative for the purposes of membership of all sectoral committees, specific committees and distinct specific committees; the National Federation of Public Service Trade Unions (UNSP) is representative for membership of a sectoral committee and the Interoccupational Federation of Public Service Personnel (FISP) is representative for membership of a specific committee. The Government explains that alongside the representative trade union organizations, there are unions that are merely recognized. The Act of 19 December 1974 establishes a system for the recognition of trade unions which wish to be active in the public services (section 15 of the Act). The Act specifies the prerogatives of recognized trade union organizations and the Royal Decree of 28 September 1984 establishes the manner in which these prerogatives may be exercised (section 7 of the Order). The Government explains that it is extremely easy for a trade union to be recognized, as no requirements are established in terms of minimum membership, prior uninterrupted trade union activity, representation of sufficiently broad categories of staff or operating rules. The Government indicates that, as of 1 July 2007, a total of 34 trade unions were recognized.
17. 472. Under the terms of section 16 of the Act of 19 December 1974, recognized organizations may: (1) intervene with the authorities in the collective interest of the personnel that they represent or in the individual interest of an employee; (2) assist at her or his request an employee called upon to justify her or his acts to the administrative authority; (3) post notices in the premises of public services; and (4) receive documentation of a general nature concerning the management of the personnel that they represent.
18. 473. In accordance with section 17 of the Act of 19 December 1974, representative trade unions may: (1) exercise the same prerogatives as recognized trade unions; (2) collect trade union dues in places of work during hours of work; (3) attend competitions and examinations organized for employers, without prejudice to the prerogatives of juries; (4) hold meetings in administrative premises.
19. 474. The Government emphasizes that alongside social dialogue, which is carried out in bargaining and consultation committees in which only representative trade unions participate, there is a less formal level of social dialogue in which recognized trade unions also take part to intervene with the authorities.
20. 475. The Government adds that the granting of a trade union bonus by the public authorities to the members of representative trade union organizations is a sort of reimbursement of the costs borne and compensation for the services provided in the form of active collaboration in establishing a positive social climate and the development of social productivity in the interests of all employees, whether or not they are unionized, and of the community as a whole. This bonus is therefore granted in accordance with the principle of equality set out in articles 10 and 11 of the Constitution of Belgium in exchange for their contribution to the sound functioning of the public services. The Government specifies that the trade union bonus is set for the reference year 2006 and for each following year at 80 euros (€) a year.
    • III. The trade union status of the Professional Association of Maritime Pilots (BvL)
21. 476. The Government makes the following observations:
22. (1) the public pilotage service is covered by Sectoral Committee XVIII – Flemish Community and Flemish Region;
23. (2) the number of employees in the public service concerned is 450, while the number of personnel covered by Sectoral Committee XVIII as a whole is over 44,000;
24. (3) the BvL claims to have a membership of 269 pilots;
25. (4) the BvL is not associated with any of the major tendencies of the Belgian trade union movement;
26. (5) under the terms of section 8 of the Act of 19 December 1974, the CGSP, the FSCSP and the SLFP are considered to be the representative unions that sit on Sectoral Committee XVIII – Flemish Community and Flemish Region.
27. 477. The three trade union organizations to which the complainant organization refers (namely, ACV Transcom, ACOD and VSOA) are affiliated to the European Federation of Public Service Unions (EPSU), which is the most important federation of the European Trade Union Confederation (ETUC). In the view of the Government, this demonstrates recognition at the European level of the effective interoccupational and inter-sectoral representation of these three trade union organizations.
28. 478. The Government indicates that the scope of Sectoral Committee XVIII – Flemish Community and Flemish Region has been revised recently to take into account the situation resulting from the administrative reform of the Flemish Community. This revision does not change the total number of employees covered. In accordance with the reform, the Flemish administration is based on 13 homogenous political fields in each of which a Flemish ministry has been created, which is in turn composed of a department and, where appropriate, autonomous internal agencies that are not independent legal entities. It adds that there are 29 such agencies in the Flemish administration. One of these is the Maritime and Coastal Services Agency, established by order of the Flemish Government of 7 October 2005. The Agency is composed of the following five subdivisions: the administrative service; the coastal section; the navigational assistance section; the pilotage service (DAB-L); and the fleet service. The Government emphasizes that the DAB-L service is therefore only a subdivision of an agency, which is itself only a component of one of the ministries of the Flemish administration. Consequently, the BvL can only refer to a single service in this administration to demonstrate its representative status.
29. 479. Moreover, a basic consultation committee has been created at the level of the Maritime and Coastal Services Agency. This basic consultation committee covers the five subdivisions of the Agency, including the DAB-L. The scope of the HOC corresponds to that of Sectoral Committee XVIII and includes over 44,000 employees. The Government concludes that the DAB-L service has to be placed at its appropriate level.
30. 480. With regard to the trade union status of the BvL, the Government considers that the BvL’s allegations that the system established by the Act of 19 December 1974 is intended to ensure the monopoly of the three organizations that it describes as “traditional” are without merit. It recalls in this respect that two other organizations have succeeded in establishing their representative status, one in respect of the most significant committee in the federal sector and the other in relation to the specific committee established by an inter-communal authority. It adds that the requirement to be representative to participate in regional bargaining committees (Committees A, B and C) set out in section 7 of the Act of 19 December 1974 is not intended to ensure a monopoly of representative status by the trade union organizations described as “traditional”. It explains that this requirement has its origin in the broad scope of the measures submitted to the general bargaining committees and the importance of their budgetary implications; at this level, it is necessary to resolve issues relating to public service employees while at the same time taking into account the policy followed in relation to private enterprises, which come within the purview of the National Labour Council.
31. 481. The Government considers that the requirement relating to representative status and the representation criteria for participation in a sectoral committee that are faced by the BvL are indeed, contrary to the claims of the complainant organization, objective, pre-established and precise. Nor are these requirements and criteria excessive to the extent that it would be difficult for a trade union to meet them.
32. 482. In this respect, the Government observes that if, in the same way as the two former trade unions representing pilots (VSRL and VZKL) from which the BvL emerged, the latter were affiliated to the National Federation of Public Service Trade Unions, which meets two conditions relating to representative status (defending the interests of all categories of personnel in the services covered by the sectoral committee and being affiliated to an organization established as a federation at the national level), it would be sufficient for it to meet the criterion of 10 per cent of the personnel of the services covered by the sectoral committee.
33. 483. With regard to the BvL’s allegations relating to the trade union bonus, the Government recalls that the provisions of the Act granting this bonus have already been examined by the Committee on Freedom of Association, which found that it does not seem to constitute a real means of pressure leading to the conclusion that the public authorities intend, through the advantages granted to certain workers, to influence unduly the choice of workers with regard to the organization that they intend to join. For it to retain this quality, the Committee on Freedom of Association considers that it is important that the amount of the bonus in question does not exceed a symbolic level [see 208th Report, Case No. 981, para. 116].
    • IV. Response to the allegations of the violation of ILO Conventions
34. 484. With regard to the BvL’s allegations of the violation of ILO Conventions, the Government emphasizes its constant concern to comply with the provisions of the ILO Conventions on freedom of association. It also observes, in reply to the BvL’s allegations of the violation of Convention No. 151, that the Committee of Experts on the Application of Conventions and Recommendations has not commented on the application of this Convention since it provided explanations concerning the nature of the prerogatives of recognized trade unions, and the outcome of the examination of representative status carried out in 2003.
35. 485. The Government adds that, while the Labour Relations (Public Service) Recommendation, 1978 (No. 159), provides for the need for objective and pre-established criteria to determine the representative character of trade unions, Paragraph 1(2) of the Recommendation indicates that the procedures for assessing the representative nature of unions should be such as not to encourage the proliferation of organizations covering the same categories of employees. In this respect, the Government also refers to the conclusions of the Committee on Freedom of Association in a previous case in which it indicated that the diversity of the trends in the trade union movement of many countries has indeed prompted their legislators to reserve certain rights for the organizations with the largest following among the workers, particularly as concerns negotiation with, or consultation by, employers or the public authorities (…). The Committee has accordingly admitted on various occasions that a distinction may be made under one system or another between different unions according to the extent to which they are representative. But it has added that it is nevertheless necessary, in order to prevent abuse, to verify the value of the criteria chosen for determining representative character and to ascertain whether sufficient protection is afforded to minority organizations to enable them to pursue and develop their trade union activities [see 197th Report, Case No. 918, para. 157].
36. 486. The Government notes that the BvL recognizes in its complaint that the competent authority has established informal structures for the purpose of facilitating consultation and accordingly ensuring the effective exercise of its prerogative as a recognized trade union. The Government observes that the operational difficulties of the Mixed Workgroup for Pilots to which the BvL refers stem from a misunderstanding between the BvL and the representative trade union organizations. The competent authority has refrained from any interference to preserve the freedom of association of each organization.
37. 487. With regard to the references to previous cases examined by the Committee on Freedom of Association, and those cited by the BvL, the Government considers that they are intended to portray the DAB-L as a sector so as to claim that the Committee’s conclusions relating to representation at the sectoral level also apply to the situation of the BvL. The Government recalls that, as indicated above, the BvL represents pilots (340 overall of which the BvL declares it represents 269 members) in a service that is only a part of a larger entity, namely the sector covered by the Flemish Government.
38. 488. Finally, the Government denies the allegations that the provisions of trade union legislation relating to representative status are not in compliance with the various European and international instruments (the European Social Charter, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations International Covenants).

C. The Committee’s conclusions

1. 489. The Committee notes that this case concerns the difficulties faced by a trade union that is recognized but does not have the representative status required under Belgian law to be represented on bargaining and consultation bodies and therefore to participate fully in collective bargaining in relation to the category of public employees that it covers.
2. 490. Before examining the problems raised in this case which, in certain respects, have already been referred to in part in a number of cases examined previously, and particularly in Case No. 1250 (241st and 251st Reports), they need to be placed in the context of the issues that the Committee has examined in the past relating to the representative status of trade unions.
3. 491. The Committee has generally conceded that certain advantages 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 organization to which they wish to belong. The Committee has also taken the view that the fact that a trade union organization is debarred from membership of joint committees does not necessarily imply infringement of the trade union rights of that organization. But for there to be no infringement, two conditions must be met: first, the reason for which a union is debarred from participation in a joint committee must lie in its non-representative character, determined by objective criteria; second, in spite of such non-participation, the other rights which it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) [see 143rd Report, Case No. 655 (Belgium), para. 40].
4. 492. With regard to the system established by the legislation that is in force in Belgium, especially the Act of 19 December 1974 and its implementing decrees, the Committee notes in particular the requirement for trade unions to be affiliated to a federation represented on the National Labour Council for them to be considered representative both in the private sector (the Act of 5 December 1968) and in the public sector (the Act of 19 December 1974) for the purpose of being represented on the joint commissions for the private sector and participating in the work of the general bargaining committees for the public sector.
5. 493. The complainant organization challenges the refusal of the authority to grant it the status of representative organization in its own branch. The principal disadvantage is that it cannot be represented on bargaining and consultation committees or participate in the collective bargaining process in relation to issues within its competence. The Committee notes the statistical data provided by the BvL concerning its representative status in the pilotage service. It indicates that there are 450 staff in the DAB-L, of whom 340 are pilots, with 269 of the latter being members of the BvL. It accordingly claims the membership of 80 per cent of the pilots and 60 per cent of all the employees of the DAB-L. The Committee also notes the Government’s explanation that the Flemish administration is composed of a series of political fields in each of which a Flemish ministry has been established, made up of a department and, where appropriate, autonomous internal agencies that are not independent legal entities. There are currently 29 agencies that are not independent legal entities in the Flemish administration, one of which, the Maritime and Coastal Services Agency, is composed of five subdivisions, including the DAB-L. The Government also emphasizes that the DAB-L is a service with 450 employees in a sector of over 44,000 workers and that the DAB-L service has to be placed at the appropriate level.
6. 494. The Committee recalls that it expressed the view in a previous case concerning Belgium that the legislation could prevent a trade union that is the most representative in its branch from participating in collective bargaining in its sector. The Government was accordingly requested to re-examine the provisions of the Act of 1974 and its implementing decrees. However, the Committee is of the view that the present case differs from the case referred to above in that it concerns an organization that only represents a small category in numerical terms (450 persons) of all the employees covered by a sectoral committee. The Committee also notes the Government’s indication that if the BvL, in the same way as the two former trade unions representing pilots from which the BvL emerged, were affiliated to a national organization meeting the requirements for representative status (defending the interests of all the categories of employees in the services covered by the sectoral committee and being affiliated to an organization established as a federation at the national level), it would be sufficient for it to demonstrate that it meets the criterion of 10 per cent of the employees of the services covered by the sectoral committee in order to participate in its meetings.
7. 495. In general, the Committee notes the various criteria established by the Act of 19 December 1974 respecting the granting of representative status to trade union organizations (sections 7 and 8 of the Act). The Committee also notes the Government’s reference in its reply to the qualitative elements that it also considers important and which, in its view, provide the basis for the mutual recognition that is essential between the partners in social dialogue: the stability of the organization, the real nature of its existence and its action, and also the externalization of the work of its statutory bodies and its outside relations in terms of contacts and information. In this respect, the Committee observes that these criteria are not set out in the legislation and considers that they cannot therefore be deemed to be pre-established. The Committee has recalled on several occasions the need for objective and pre-established criteria to be set out in the law and in practice so as to avoid any risk of partiality or abuse.
8. 496. The Committee has recalled its view concerning a trade union that is barred from sitting on a bargaining body. This does not necessarily imply that there is an infringement of that organization’s trade union rights. However, the Committee recalls that, for there to be no such infringement, two conditions must be met: first, the reason for which a union is debarred must lie in its non-representative character, determined by objective criteria; second, despite such non-participation, the other rights that it enjoys and the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members within the meaning of Article 10 of Convention No. 87. The Committee notes the indications of the BvL, confirmed by the Government, that the competent authority has established informal structures with a view to its consultation and to ensure the effective exercise of its prerogative as a recognized trade union. The Committee notes that, according to the Government, the difficulties in the operation of the Mixed Workgroup on Pilots referred to by the BvL have their origins in the disagreement between the BvL and the representative trade union organizations and that the competent authority has refrained from any intervention in its concern to preserve the freedom of association of each organization. As the Mixed Workgroup on Pilots is the only body in which the BvL can speak on behalf of the category of workers whose interests it defends in a context of consultation with the other partners, the Committee expects that the Government will take all the necessary measures to reinforce dialogue in this body. The Committee requests the Government to keep it informed of the measures taken.
9. 497. In relation to the trade union bonus granted under the Act of 1 September 1980 respecting the granting and payment of a trade union bonus to certain employees of the public service and its implementing decrees, the Committee notes the explanation that, in the view of the Government, it consists of compensation to representative trade union organizations for their contribution to the sound functioning of the public services and is not intended to place them under the control of the public authority. It further notes that the trade union bonus is set for the reference year 2006 and for each following year at €80 a year. In this respect, the Committee considers that this amount does not seem to constitute a real means of pressure leading to the conclusion that the public authorities intend, through the advantages granted to certain workers, to influence unduly the choice of workers with regard to the organization that they intend to join. For it to retain its present quality, the Committee recalls that it is important that the amount of the bonus in question does not exceed a symbolic level.

The Committee's recommendations

1. 498. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recalls in general terms, with regard to the determination of the representative status of trade unions, that it has been requesting the Government for very many years to set out clearly in law, and in practice, objective and pre-established criteria so as to avoid any risk of partiality or abuse.
   • (b) The Committee expects that, as the Mixed Workgroup on Pilots is the only body in which the BvL can speak on behalf of the category of workers whose interests it defends in a context of consultation with the other partners, the Government will take all the necessary measures to reinforce dialogue within this Workgroup. The Committee requests the Government to keep it informed of the measures taken.