2010 Annual Survey of violations of trade union rights - Belgium

Population: 10,600,000
Capital: Brussels
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182

The three national trade union centres lodged a complaint before the European Committee of Social Rights for violation of the right to strike against the State for allowing employers to adopt a "preventive and proactive strategy" for countering collective action by obtaining civil courts' intervention in collective disputes.

Trade union rights in law

Basic trade union rights are secured, however there are some areas of concern. Workers have the right to form and join unions of their choice. While special protection is awarded to workers' representatives in works councils and committees for prevention and protection at work, freedom from anti-union discrimination is not adequately secured due to a loophole in the law.

Collective representation of workers in small and medium-sized enterprises (SMEs) is not fully protected either, although the situation improved with the adoption of a law in 2008 which secured the right of trade union delegations in SMEs to consultation and to receive information.

Furthermore, although the right to strike is recognised, the legislative authorities have refrained from defining the scope of this right. The civil judiciary has also weakened the right in particular by restricting strike pickets, and an appeal was lodged in 2009 to the European Committee on Social Rights in this regard. On 5 November 2009, the Brussels Industrial Tribunal also refused to recognise the seriousness of the grounds for dismissing a delegate during a collective action. In the same judgement, the industrial Court said that the right to strike was not limited to strikes as such but could cover other types of actions (occupations...).

Trade union rights in practice and violations in 2009

Background: According to a study conducted by the human resources consultancy SD Worx, half of the companies located in Belgium were expected to restructure during 2009. A number of large-scale strikes took place during the year. Former Prime Minister Yves Leterme, who had resigned not long beforehand in December 2008, was reappointed in November as incumbent Prime Minister Herman Van Rompuy stepped down to take up a new post as President of the European Council.

Judicial intervention: A "gentlemen's agreement", signed by the social partners in 2002, stipulates that employers undertake to avoid using legal proceedings in industrial disputes unless all conciliation attempts have failed, while the workers commit to respect strike notice periods. While trade unions have honoured their side of the deal, the employers have had less scruples. Certain forms of industrial action such as picketing have been under attack.

In June, the European Trade Union Confederation (ETUC) and three national trade union centres, ACLVB-CGSLB, CSC-ACV and FGTB-ABVV, lodged a complaint before the European Committee of Social Rights for violation of the right to strike. The unions criticised the state for allowing employers to adopt a "preventive and proactive strategy" for countering collective action by obtaining civil courts' intervention in collective disputes. Employers' petitions to ban industrial actions are handled in an urgent manner and ex parte, which means that trade unions and employees organising the strike are not given the opportunity to argue their case.

If the court bans an action, any worker who decides to ignore such a ban, for instance by maintaining a picket line, may end up facing a heavy financial penalty. The police can be called upon to enforce the ban by dispersing trade union pickets, checking the identities of the participants and taking them into the police station. Furthermore, in case of a ban, trade unions can try to set it aside by means of "third-party intervention", but this is often ineffective. There were reports of courts refusing to issue a copy of their decision to the concerned union. Also, if the workers cancel the strike, judges see the dispute as settled and refuse any further review.

Still, courts usually decide that preventing employees or third parties wishing to enter a company building from doing so is prohibited, irrespective of whether or not any violence has been used. Some judges also agree to issue "preventive" orders in the absence of any concrete indications that such acts might be committed.

Circumventing the law: A special procedure needs to be respected when dismissing workers' representatives in works councils and committees for prevention and protection at work, or else the workers' representatives can ask for reinstatement. However, in practice, workers' representatives are never reinstated. Employers prefer to pay out legal entitlements, even large ones, rather than to respect the special procedures or to take wrongfully dismissed workers' representatives back. Moreover, the law provides that during the proceedings the contract can only be suspended by the labour court for valid reasons. The courts grant this suspension liberally, therefore the exception becomes the rule.

Attempts at strike-breaking: Certain employers do not hesitate to offer monetary incentives to workers that do not participate in a strike.

Update on Carrefour case: In 2008, following a bitter industrial dispute, judges prohibited "all actions that would directly or indirectly disrupt or complicate the normal activities of Carrefour". Trade unions submitted third party appeals to reverse the orders, and on 25 March, the court of first instance in Mons ruled against the employer, expressly recognising the right to strike. The court held that an ex parte decision, which was requested by the employer, could only be taken when absolutely necessary since such a proceeding would disregard the right of the strikers. According to the court, the situation at Carrefour did not meet the criteria for the special procedure. Other courts held the same reasoning. Carrefour went into appeal. The case is still pending.

Union representative threatened at knife point: On 4 May, a trade union representative at Spimoglass, in Liège, was just getting out of his car on his way home. Suddenly, a motorcycle crossed the road and blocked the unionist's path. The rider approached the unionist and put a knife to his throat, saying [the knife] would "go further" unless he stepped down from his union post, before jumping back on the bike and leaving.

The next day, the president of the Liège-Huy-Waremme branch of the national trade union centre Fédération Générale du Travail de Belgique (FGTB) stated that Spimoglass had being doing everything they could to prevent a union being established, and that each time social elections were to take place, the few candidates had always withdrawn their candidacies due to the employer's intimidation and threats. Spimoglass promptly issued a statement refuting the FGTB's claim. In the statement, the company condemned the attack against the union delegate and called for a proper investigation. Spimoglass stressed that the incident took place outside the company premises and that the perpetrators had not been identified.