Effect given to the recommendations of the committee and the Governing Body - Report No 353, March 2009

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

Effect given to the recommendations of the Committee and the Governing Body

1. 58. The Committee last examined the substance of this case at its March 2008 session, when it recalled, with regard to the determination of the representative status of trade unions, that it had been requesting the Government for many years to set out clearly in law, and in practice, objective and pre-established criteria to avoid any risk of partiality or abuse. The Committee had also expressed the hope that the Government would take all the necessary measures to reinforce dialogue within a mixed working group which was the only body in which the Professional Association of Maritime Pilots (BvL) could speak on behalf of the category of workers whose interests it defends in a context of consultation with the other partners [see 349th Report, paras 425–498].
2. 59. In a communication dated 4 September 2008, the Government starts by stating that the conditions and criterion for representativeness established under sections 7 and 8 of the Act of 19 December 1974, must be considered as irrefutable pre-established criteria and therefore comply with the Committee’s requirement. Furthermore, the Government acknowledges that the Committee rightly pointed out the existence of other de facto elements of determination which are taken into account when providing the basis for mutual recognition that is essential between partners in social dialogue, but which are not included in legislation and cannot therefore be considered as pre-established. The Government also points out that the legislation requiring trade unions to be affiliated to an organization belonging to the National Labour Council in order to have representative status, on the basis of which three trade unions participate in the work of general committees and other bargaining committees, is justified because of the objective links existing between the National Labour Council and the public services and because the general labour legislation covers both the private and public sectors. Similarly, the Government recalls that the authorities or a trade union organization might refer to the bargaining committees on a matter of legal provisions and regulations applicable to the private sector, collective agreements concluded within a joint body or proposals from the National Labour Council, with a view to making them applicable to the staff covered under the Act of 19 December 1974. Given the vast scope of measures discussed at the level of general committees and the considerable budgetary expenditure this might involve, the Government stresses the difficulty of settling matters concerning public service officials at this level without taking into account the policy applied to workers in the private sector.
3. 60. As regards the Committee’s recommendation concerning the need to guarantee a trade union barred from sitting on a bargaining body the other rights that it enjoys and ensure that the activities it can undertake in other fields must enable it effectively to further and defend the interests of its members, the Government points out that the legislation guarantees to any trade union organization, including the BvL, the right to bring a matter before the public authorities in the collective interest of the staff it is representing, without any preconditions. Such demands and their grounds might, by their very nature, influence the authority’s standpoint during the bargaining stage. The Government stipulates that, in the case of the staff whose interests are defended by the BvL, the competent authority has demonstrated its goodwill in matters of social dialogue by setting up informal bargaining structures, although the Act of 19 December 1974 makes no provision for this. This attitude would seem to imply that this authority is willing to do all it can to promote social dialogue.
4. 61. The Committee notes the additional information provided by the Government. It recalls that matters concerning trade union representativeness in Belgium have already been raised in several previous cases, as well as in comments by the Committee of Experts on the Application of Conventions and Recommendations. Recalling that the determination of the most representative organization must be based on objective and pre-established criteria and clearly set out in law, the Committee is submitting the follow-up of this legal aspect of the case for examination by the Committee of Experts.
5. 62. Concerning the informal structures set up by the competent authority, including the mixed working group in which the BvL speaks on behalf of the category of workers whose interests it defends in a context of consultation with the other partners, the Committee notes the Government’s statement that this is evidence of the authority’s goodwill, implying that social dialogue will always be promoted. The Committee trusts that the competent authority will continue to guarantee the BvL the effective exercise of its prerogative as a trade union authorized to promote and defend the interests of its members.