Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Belgique (Ratification: 1953)

The Committee notes the observations of the General Labour Federation of Belgium (FGTB), the Confederation of Christian Trade Unions (CSC) and the General Confederation of Liberal Trade Unions of Belgium (CGSLB) of 30 August 2019 relating to issues examined in this comment, and the Government’s reply in this regard, received on 29 October 2019.

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

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

Harmonization of the joint committees and workers in the platform economy. The Committee notes the allegations of the trade unions that, without consultation with the social partners, workers in the platform economy have been excluded from the scope of the Act of 5 December 1968 governing the negotiation and conclusion of collective labour agreements, which implies that they are unable to participate in the negotiation of collective labour agreements. In this regard, the Committee notes the Government’s indications that the so-called “collaborative” economy, established by the Framework Act of 1 July 2016 and amended by the Act of 18 July 2018 on economic recovery and the strengthening of social cohesion, is a limited regime legally governed by a certain number of cumulative conditions. In particular, the activity must: (i) be provided through an approved platform that is also the intermediary for the payment for the service; (ii) be performed only by an individual for the benefit of another individual (delivery services to individuals of meals prepared by restaurants, for example, are excluded); (iii) be undertaken outside any occupational activity; and (iv) not result in compensation of over €6,250 a year. The Government also explains that: (i) when these conditions are fulfilled, the collaborative economy regime is applicable, as the services are provided outside occupational activity and any relation of subordination; (ii) in view of the limited amount of the compensation, the service providers are not in a situation of economic dependence in relation to either the approved platforms or those giving instructions; (iii) when the conditions for the collaborative economy regime are not fulfilled, the income is classified for tax purposes as self-employed income (resulting in the provider being subject to self-employed status), unless the provider proves that it is not occupational income (not subject to social security) or that the work is performed in the context of a relationship of subordination, the whole body of labour law applies, including the regulations guaranteeing freedom of association, the right to organize and collective bargaining. Finally, the Government indicates that the self-employed may join bodies that defend the rights of self-employed workers, particularly in relation to Government authorities. The Committee notes that the information provided by the Government in reply to the allegations of the trade unions mainly relates to people in the so-called “collaborative” economy (which, under the terms of the Act of 18 July 2018, consists of services of low economic value provided outside of occupational activity), which it distinguishes from other platform workers. However, the Committee notes that the Government also indicates that platform workers not covered by the collaborative economy regime are by default considered to be self-employed, and that the provisions of labour law, including the right to collective bargaining, only apply if the work is performed in the context of a relationship of subordination. In this regard, and without prejudice to the legal classification applied to the various kinds of platform workers, the Committee recalls that paragraph 209 of its 2012 General Survey on the fundamental Conventions indicates that the right to collective bargaining should also apply to organizations representing self-employed workers. The Committee also recalls that it is aware that the collective bargaining machinery applied in traditional labour relations may not be adapted to the specific circumstances and conditions of the work of self-employed persons. In view of the above, the Committee requests the Government to provide further information on the various organizational structures in the digital platform economy and on the way in which the workers concerned are able to organize and conduct collective bargaining. The Committee invites the Government to hold consultations with the parties concerned with a view to ensuring that all platform workers covered by the Convention, irrespective of their contractual status, are authorized to participate in a free and voluntary collective bargaining. Considering that such consultations are intended to enable the Government and the social partners concerned to identify the appropriate adjustments to make to the collective bargaining mechanisms to facilitate their application to the various categories of platform workers, the Committee requests the Government to provide information on any progress achieved in this regard.

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