Demande directe (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Belgique (Ratification: 2015)

The Committee notes the joint observations of the General Confederation of Liberal Trade Unions of Belgium (CGSLB); the Confederation of Christian Trade Unions (CSC); and the General Labour Federation of Belgium (FGTB), received on 29 June 2022.

Article 1 of the Convention. Definitions. Dependent children and other members of the worker’s immediate family who clearly need their care or support. The Committee recalls that there is no uniformly applied definition of “dependent child” and “other members of the immediate family” in the national legislation. It notes the Government’s indication in its report that, in a general manner, a “dependent person” is defined as a person whose maintenance is taken on by another person, whether it concerns children or other members of the family. According to the social security system, a dependent person is a person who benefits from social security through another person who is the beneficiary. Dependent persons may be the partner of, or the person living with the beneficiary, children below the age of 25 years, ascendants of the beneficiary and, where relevant, their parents-in-law. The Committee also notes that, under the law, entitlement to leave to provide assistance or care to a family member is in general granted to “members of the household”, usually defined as any person living with the worker, or to “family members”, usually defined as relatives within two degrees of kinship with the worker, or within one degree of kinship with the spouse or partner. The Committee notes this information provided by the Government in response to its previous request.

Article 2. Application to all branches of economic activity and all categories of workers. The Committee notes the Government’s indication that certain measures aim to encompass both private and public sector workers (for example, palliative care and caregiver leave), while others concern only the private sector, although similar measures exist in the public sector, in the various regulations of the applicable legal regime (for example, parental leave or circumstantial leave). The Committee notes with interest the adoption of the Act of 7 April 2019 and of the Royal Order of 15 December 2019, establishing paternity and childbirth leave for self-employed workers. It notes that self-employed fathers and co-parents (and assisting spouses) are now entitled to paternity leave, also known as “childbirth leave”, the duration and conditions of which are identical to those applicable to employed workers. The Committee requests the Government to provide information on the specific legislation applicable to self-employed workers with family responsibilities.

Article 3. Protection against discrimination based on family responsibilities. The Committee notes that, at the federal level, the Act of 10 May 2007 on combatting discrimination between women and men prohibits all forms of discrimination based on sex, including in employment and occupation. The Government states that the criteria that are included under the protected criterion of sex are pregnancy, maternity and childbirth. The Committee notes with interest the adoption of the Act of 4 February 2020, amending the Act of 10 May 2007, which extends the prohibition of discrimination to include new protected criteria, such as paternity, co-maternity, breastfeeding, adoption and medically assisted reproduction. The Committee notes, however, that the CGSLB, the CSC and the FGTB underline in their observations that discrimination related to pregnancy persists in Belgium, and that they recommend the ratification of the Maternity Protection Convention, 2000 (No. 183). In this regard, the Committee notes the court rulings handed down in 2021 and 2022, annexed to the Government’s report, some of which refer to complaints submitted to the courts by, or in collaboration with, the Institute for the Equality of Women and Men (IEFH), regarding the refusal to recruit a job-candidate on the grounds of their family responsibilities towards their dependent children, or the reduction of the working hours of a woman worker as a result of her pregnancy or because of her dependent children (Labour Court of Brussels, 30 June 2021, RG. No. 2018/AB/695 and 25 January 2022, RG No. 2019/AB/657). It notes that, in its concluding observations adopted in 2022, the United Nations Committee for the Elimination of Discrimination against Women (CEDAW) was also concerned at the high number of complaints of cases of discrimination in employment related to pregnancy and maternity (CEDAW/C/BEL/CO/8, 31 October 2022, paragraph 43). In this regard, the Committee refers to its general observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee requests the Government to continue its efforts to ensure that men and women workers with family responsibilities enjoy appropriate protection in practice against discrimination. It requests the Government to provide information on:

• (i)the measures taken to ensure effective application of the relevant legal provisions, including awareness-raising activities for employers, and their impact; and
• (i)any future measure envisaged to include, in the legislation and in national policy, a provision expressly prohibiting discrimination in employment and occupation based on family responsibilities, as for discrimination based on sex, pregnancy and maternity.

Article 4(b). Equality of opportunity and treatment concerning conditions of employment and social security. The Committee notes with interest that:

• (i)the adoption of the Royal Order of 16 June 2020 implementing the Act of 12 May 2014 on the recognition of carers and the granting of social rights, which introduces the right to “leave for carers” in order to enable workers recognized as carers of dependent persons, without a family relationship necessarily being involved, to have the right to leave, which may take the form of a complete suspension of the fulfilment of their employment contract or a reduction of their working hours; and
• (ii)the transposition of Directive (EU) 2019/1158 of the European Parliament and of the Council of 20 June 2019 on work-life balance for parents and carers, by means of the Act and Royal Order of 7 October 2022, adopted at the federal level. It notes that measures have also been taken at the federated entity level with a view to transposing the EU Directive and that, in this context, the National Labour Council (CNT) adopted Intersectoral Collective Labour Agreement No. 162 of 27 September 2022. The Committee notes that these instruments have introduced, into national legislation, the right to request flexible working arrangements, such as a modification of existing working arrangements, in order to enable workers to look after their child or provide personal care or assistance to a household or family member who requires considerable care or assistance for serious medical reasons.

The Committee welcomes the increase in the duration of paternity and childbirth leave to 15 days (instead of ten), which will be further increased to a maximum of 20 days as from 1 January 2023, under Programme Act (1) of 20 December 2020 (section 58). However, it notes the Government’s indication that, insofar as health insurance (INAMI) only covers the cost of paternity leave as from the fourth day of leave, while the employer covers the first three days, the Government is not able to provide information on the percentage of potential beneficiaries of paternity leave who effectively exercise this right. In this regard, the Committee notes that, in their observations, the CGSLB, the CSC and the FGTB, while welcoming the extension of the duration of paternity leave, indicate that they would like paternity leave to become mandatory. The Committee observes that, according to the statistical information provided by the Government, in 2021: (1) 64.9 per cent of workers making use of parental leave were women, with the proportion of men who requested parental leave having increased only slightly since 2017 (+2.5 percentage points between 2017 and 2021); and (2) 41.9 per cent of women worked part time, compared with only 11.2 per cent of men. The Committee notes that, according to a study carried out in 2020 by the IEFH on the basis of the Labour Force Survey of the Belgian Statistical Office (Statbel), twice as many women as men with young children make specific changes in order to reconcile family and working life (Conciliation vie familiale et vie privée (Reconciliation of family and private life), Factsheet 2020). According to the Rapport sur l’écart salarial entre les femmes et les hommes en Belgique (Report on the wage gap between women and men in Belgium), published by the IEFH and the Federal Public Service (SPF) for Employment, Labour and Social Dialogue in 2021 (data from 2018), for 45 per cent of women working part time, combining professional and private life is the main reason for their working arrangements. For men, this reason is given only in 28 per cent of cases. Furthermore, the CGSLB, the CSC and the FGTB underscore that, in 2019, five times more women than men applied for a suspension of their career (crédit-temps) to fulfil their family commitments. In this regard, the Committee welcomes the decision, handed down in 2020, by the Court of Cassation, which after having observed that part-time career suspensions to reconcile professional and family responsibilities were opted for primarily by women, considered that the severance pay to be received by workers benefitting from part-time career suspensions must be calculated on the basis of a full-time wage, and not a part-time wage. The Committee notes with interest that this decision was transcribed into law by the Act of 7 October 2022, transposing EU Directive 2019/1158. However, the Committee notes that, in its concluding observations, CEDAW expressed concern at the concentration of women in part-time jobs, in both the private and public sector (CEDAW/C/BEL/CO/8, 31 October 2022, paragraph 43). The Committee requests the Government to provide all available statistical information on:

• (i)the number of men and women having benefitted from leave for carers;
• (ii)the number of fathers having applied for paternity leave and having taken such leave (employees in the public and private sector and self-employed workers), specifying, where necessary, the duration of the leave covered by the statistical data provided; and
• (iii)the number of men and women having requested flexible working arrangements, or having made use of measures concerning working time arrangements, in particular part-time work or career suspension.

The Committee requests the Government to provide information on any measures taken or envisaged regarding working time arrangements, taking into account the fact that some of these arrangements often penalize women in terms of their earnings and career development.

Article 5. Childcare and family services and facilities. The Committee notes that the measures relating to childcare (nurseries, after-school care and other childcare services) and “assistance for persons” (which includes family policy, social assistance, assistance for persons with disabilities and assistance for older persons) fall within the competence of communities and that, as a result, there may be notable differences between the relevant services provided by the German-speaking, Flemish and French communities. In this regard, it notes that, in their observations, the CGSLB, the CSC and the FGTB underscore the continued shortage of childcare places, particularly in cities, and especially in Brussels, while in rural areas, mobility, and therefore access to a place in a childcare institution that can be reached by public transport, remains a major issue. The trade union organizations add that quality and affordable childcare remains a real challenge in terms of enabling women to participate in the world of work. The Committee notes that, according to the annual activity report of the Office of Birth and Childhood, in 2020, the rate of coverage of childcare needs for children between 0 and 3 years registered at a childcare institution or nursery school, was 41.1 per cent for the Brussels Capital region, compared with 51.3 per cent for Wallonia. The Committee notes the Government’s indication that certain measures have been implemented in the Brussels Capital region, but that specific measures aiming to increase the number of childcare institutions have been envisaged under the National Recovery and Resilience Plan for 2022-2023. Noting that the lack of childcare facilities for very young children constitutes an obstacle to equality of opportunity for men and women workers wishing to reconcile their professional and family lives, the Committee encourages the Government to take the necessary measures at the national and regional level in order to ensure that adequate, affordable and accessible childcare services and facilities are available. It requests the Government to provide information on:

• (i)the measures taken to improve of childcare needs for children between 0 and 3 years, and their results in terms of childcare places, particularly in the Brussels Capital region;
• (ii)the measures taken to combat territorial inequalities relating to childcare, including in rural areas, and their results; and
• (iii)the number and nature of childcare and family services and facilities available to men and women workers with family responsibilities, and the number of workers with family responsibilities who use them.

Article 6. Information and awareness-raising. The Committee notes the Government’s indication that, between 2019 and 2021, several awareness-raising campaigns were carried out at the federal level by the IEFH, particularly in the context of the European project “Parents @ work”, with the aim of improving the protection of and combatting discrimination against pregnant workers, and mothers and fathers in the workplace. The Government indicates that this campaign particularly allows for the exchange and dissemination of best practices promoting a balance between professional and private life. Different training courses have also been organized for the labour inspectorate services on the rights of pregnant workers and parents in the workplace. The Committee notes the information provided by the Government and encourages it to continue to provide information on the information and awareness-raising campaigns carried out.

Article 7. Vocational guidance and training. The Committee recalls that the implementation of vocational guidance and training measures falls within the competence of the federated entities, and more precisely of the regions. Concerning the Brussels Capital region, the Committee notes the Government’s indication that, in 2021, women represented 52.8 per cent of persons having received training through the Bruxelles Formation (Brussels Training) service, a public body responsible for vocational training for French-speaking jobseekers and workers from Brussels in the Brussels capital region. The Government indicates, however, that no information is available on the number of men and women workers with family responsibilities having received this training. The Committee notes in this regard that, Bruxelles Formation provides a guide for persons receiving its training, in order to help them, via a social support service, to find places in nurseries or to direct them towards associations. For this purpose, a network of 14 partner structures was set up to provide childcare for 105 children of parents receiving training. The majority of beneficiaries were women with long-term jobseeker status. The Government adds that a discussion on the situation of single parents receiving training and measures that may contribute to securing their career path, such as flexible training hours, is soon to be initiated by the Bruxelles Formation user service. Concerning the Act on feasible and manageable work of 5 March 2017, which provides for the organization of training, whether at the sectoral level, or at the enterprise level, through the creation of an individual training account, and which sets as an interprofessional objective, an average of five training days per full-time equivalent per year, the Committee notes the Government’s indication that, to date, around two-thirds of employees are covered by a collective labour agreement that envisages the achievement of this interprofessional objective. The Government adds that it does not have information on the impact of this regulation on men and women workers with family responsibilities. This regulation is of general application and the collective labour agreements do not contain specific provisions for men and women workers who return to the workplace after parental leave. In this regard, the Committee notes that the UN Committee on Economic, Social and Cultural Rights expressed concern at the difficulties encountered by women, especially women with children, in accessing stable employment (E/C.12/BEL/CO/5, 26 March 2020, paragraph 28). The Committee requests the Government to continue to provide information on the vocational guidance and training measures implemented in the different regions and communities, to enable men and women workers with family responsibilities to enter or re-enter the labour force, or to return to the posts they occupied formerly due to these responsibilities. In this regard, it requests the Government to provide statistical information, disaggregated by sex, on the number of workers with family responsibilities having benefitted from these measures.

Article 11. Cooperation with employers’ and workers’ organizations. The Committee notes the Government’s indication that, following a series of meetings between employers’ and workers’ organizations within the CNT, a practical guide aiming to facilitate and support initiatives implemented by enterprises on promoting diversity and combatting discrimination during the recruitment phase, with a focus on maternity, adoption, paternity and co-maternity, was adopted by the CNT on 28 April 2020. The Committee also notes that, in the context of the transposition of EU Directive 2019/1158 on work-life balance for parents and carers, the CNT concluded a new intersectoral collective labour agreement, as a result of the “will of the social partners to achieve equality between men and women with regard to labour market opportunities and treatment at work, by facilitating the reconciliation of work and family life”. Collective Labour Agreement No. 162 of 27 September 2022 establishes, more specifically, the right to request flexible working arrangements to take care of a child or provide personal care or assistance to a household or family member. The Committee notes the information provided by the Government.

Enforcement. The Committee notes that, according to a study published in 2020 by the IEFH, almost as many men as women state that they have difficulties reconciling professional and family life (Factsheet 2020). It also notes that the IEFH received, in 2020, 350 reports related to discrimination based on sex or on a related ground, in the area of employment, of which 56 per cent were related to sex, 15 per cent were related to pregnancy or maternity, and 2 per cent were related to paternity. The Committee requests the Government to continue to provide information on the number, nature and outcome of any cases or complaints concerning unfair treatment or dismissal on the ground of family responsibilities examined by the IEFH, the labour inspectorate, the courts or any other competent authority. It also requests the Government to provide statistical data, disaggregated by sex, and any studies, surveys and reports that may enable the Committee to assess the manner in which the principle enshrined in the Convention is applied in practice, indicating the obstacles faced and the progress achieved with regard to equality of opportunity and treatment between men and women workers with family responsibilities and between these workers and men and women workers without family responsibilities.

General observation. Regarding the above-mentioned points, and more generally, the Committee would like to draw the Government’s attention to its general observation on workers with family responsibilities, adopted in 2019. In this general observation, the Committee recalls that the ILO Centenary Declaration for the Future of Work’s aim to achieve gender equality at work through a transformative agenda, and stresses the importance of the Convention in this regard. It calls for member States, and employers’ and workers’ organizations, to strengthen efforts towards: (i) making non-discrimination of workers with family responsibilities and the adoption of measures to facilitate the reconciliation of work and family responsibilities explicit aims of their national policy; (ii) regularly monitoring and assessing the results achieved within the framework of the national policy towards achieving the aims of the Convention with a view to adjusting the measures adopted or envisaged; (iii) launching regular public information campaigns to promote the sharing of family responsibilities and remove misconceptions around care roles; (iv) ensuring that workers with family responsibilities have effective equal opportunities and rights to enter, re-enter and remain integrated in the labour market; (v) expanding and increasing access of all workers to voluntary and protected measures of working arrangements and leave that facilitate reconciliation of work-family life; (vi) expanding measures that support the reconciliation of work and family responsibilities within social protection systems; (vii) establishing and expanding adequate quality childcare and family services at community level; (viii) promoting social dialogue, collective bargaining and other measures to strengthen, facilitate and encourage the implementation of the principles of the Convention; and (ix) enhancing the capacity of enforcement authorities, including labour inspectors, tribunals, courts, and other competent bodies, to identify, prevent and remedy cases of discrimination in employment and occupation related to family responsibilities. The Committee requests the Government to provide information on any measures taken or contemplated to give effect to the points raised above.