Labour Laws in Belgium--

Labour Laws in Belgium- I

THE EVOLUTION OF LABOUR LAW IN BELGIUM
1992-2002
Final report 2003-06-05
I. INTRODUCTORY SECTION
A. Trade Unionization
While worldwide trade unionization degrees
may have been declining, the same can not be
said for Belgium. Trade unions and employer
federations remain extremely important. The
degree of unionization remains high and is
reported to be even on the rise, be it only a
very little bit.
Belgium knows three major trade unions.
Each of these ideologically corresponds to one
of the major political parties:
1. ACV/CSC – related to the Christian
democrat political party;
2. ABVV/FGTB – related to the socialist
political party, and
3. ACLCB/CGSLB – related to the liberal
political party.
In terms of membership the first two unions
are by far the most important ones. While the
socialist trade union used to be the biggest in
the French speaking part of the country, it has
become clear over the last couple of years that
the Christian trade union is the biggest both in
Flanders and Wallonia.
With regard to the membership numbers, it has
to be reported that no official figures are
available. The trade union themselves report –
in an unverified way – on the number of their
affiliates. Instead of decreasing numbers, the
Belgian trade unions report a slight increase
over the last couple of years. The Christian
trade union reported an increase with 30,000
members over the last three years.
Trade Union Membership in
absolute figures
ACV/CSC 1,600,000
ABVV/FGTB 1,200,000
ACLVB/CGSLB 280,000
All three trade unions are organized in both
linguistic parts of the country. The trade
unions, apart from the white collar workers are
organized on an industry basis and not on an
occupational basis.
The overall unionization degree is more than
50 %. Unionization is a higher among blue
collar (manual labour) than among white collar
(intellectual) workers. Both kinds of workers
are organized in different organizations within
the three trade unions
B. Collective Bargaining
1. Introduction
Collective bargaining in Belgium is entirely
regulated by an Act of 5 December 1968 on
collective Bargaining Agreements and Joint
Committees.1 This Parliamentary Act foresees
the possibility for engaging in collective
bargaining at the various levels of industrial
relations.
The 1968 Act sets out the rules that govern
collective bargaining in Belgium. It
determines the scope of collective bargaining,
with respect to the people covered by it, as
well as with respect to the issues that can be
addressed in a collective bargaining
agreement. It defines what a collective
bargaining agreement is, which rules it has to
obey, who can negotiate it, what its binding
force will be, whether it can be extended to
cover the entire work force etc. The 1968 Act
equally regulates the place of the various kinds
of collective bargaining agreements and other
sources of labour and employment law.
The 1968 Act gives a definition of what a
collective bargaining agreement is. It is
1 Act, 5 December 1968, Official Gazette, 15
January 1969, often amended thereafter.
7
defined as an agreement concluded between
one or more employee organizations (read:
trade unions) on the one hand and one or more
employers’ associations or one or more
employers and regulating individual and
collective relations between employers and
employees at the level of the company or the
level of the industry and in which also the
rights and obligations of the contracting parties
are defined.2
2. Personal Coverage of Collective
Bargaining Agreements
The Act of 5 December 1968 states that it is
applicable to workers performing in the
execution of an employment contract and to
employers. In its article 2, § 3 it excludes from
its scope the personnel of the State, the
provinces, the communities and the workers of
the public sector. A few exceptions are
explicitly foreseen in the Act.3 In principle,
public sector employees are therefore not
covered by collective bargaining agreements.
In its article 19, the Act of 5 December 1968
furthermore specifies that a collective
bargaining agreement is binding on:
“1.the organizations that concluded it and the
employers that are members of such
organizations or that have concluded the
agreement, as from the date it comes into
force;
2.the organizations and employers
subsequently acceding to the agreement and
the employers who are members of such
organizations, as from the date or their
accession;
3.employees who became affiliated to an
organization bound by the agreement, as from
the date of their affiliation
4. all workers in the service of an employer
bound by the agreement.”4 The fact that some
of the workers do not agree with the
provisions, does not take away from the
binding effect of the collective bargaining
agreement in respect of them.5
2 Act, 5 December 1968, Official Gazette, 15
January 1969, often amended thereafter, art. 5.
3 Act, 5 December 1968, Official Gazette, 15
January 1969, often amended thereafter, art. 2,
§ 3.
4 Act, 5 December 1968, art. 19.
5 Supreme Court, 1 February 1993,
Rechtskundig Weekblad, 1993-94, 47; Labour
The above does not mean that the parties to the
collective bargaining agreement would not be
able to determine the personal scope of
application of their own collective bargaining
agreements. They can themselves, when
concluding the collective bargaining
agreement determine the conditions that need
to be satisfied in order to be able to benefit
form the application of the collective
bargaining agreement, unless self-evidently the
choice of the worker to whom the agreement
would be applicable, would be discriminatory
and in violation of the law.
It does not matter for a collective bargaining
agreement’s coverage whether an employee is
unionized or not. For a company level
agreement the rule is that it is applicable to
whomever is employed by the employer,
regardless whether he/she should be
considered to be a free-rider or not. Trade
union membership is thus not required in order
to be able to be covered by a collective
bargaining agreement.
Membership in an organization that concluded
a collective bargaining agreement may be
important for an employer when dealing with
sector collective bargaining agreements that
are not rendered generally binding by the
King. In that case an employer will only be
bound by the sector level agreements if he is
himself a member of the employers’
association that concluded the agreement
3. Types of Collective Bargaining
Agreements
With respect to the types of collective
bargaining agreements a two-fold distinction
will be made. On the one hand the distinction
regarding the duration of the collective
bargaining agreements (fixed term or not), and
on the other hand a distinction based on the
level of the industrial relations system at which
the collective bargaining agreements have been
concluded.
Article 15 of the Act of 5 December 1968
explicitly foresees three kinds of collective
bargaining agreements in this respect:
1. collective bargaining agreements for a
fixed term, indicating the duration of their
validity6;
Court, Liège, 26 May 1998 and 24 November
1998, Sociaalrechtelijke Kronieken, 1999, 237.
6 See also : Act, 5 December 1968, Official
Gazette, 15 January 1969, often amended
thereafter, art. 16, 5°.
8
2. collective bargaining agreements for
an indefinite period of time; and
3. collective bargaining agreements for a
fixed term with a renewal clause.
Collective Bargaining Agreements are
concluded at the various levels of industrial
relations in Belgium: at the national interindustry
level in the National Labour Council.
The National Labor Council is composed of
employers’ and employee representatives and
presided by a civil servant who is not a party to
the collective bargaining agreements as such.
Collective Bargaining Agreements concluded
within the National Labour Council are almost
always rendered binding by Royal Decree and
then become applicable to all employers and
employees in the private sector.
A tier of industrial relations just below the one
of the National Labor Council is situated at the
level of the various industries or sectors of
business. Sector level collective bargaining
takes place in the joint committees of industry
set up per sector of industry. Mostly these
joint committees are set up separately for blue
and white-collar workers, so that bargaining
for the two kinds of workers often takes place
separately. There are far over one hundred of
these joint committees in Belgium. In these,
several hundreds of collective bargaining
agreements are concluded per year. It is fair to
say that the brunt of the wages and the
working conditions for a large number of
employees are set at the level of the joint
committee of industry.
One more level below is the level of the
individual enterprise. It should be taken into
account that lower level collective bargaining
agreements can not go against the content of
higher-level collective bargaining agreements.
They may not foresee conditions and benefits
which are less advantageous to the employee.
However, they can foresee conditions, which
are more advantageous. Various
Parliamentary Acts foresee that certain topics
(such as under certain conditions night work
and weekend work) need to be regulated by an
enterprise collective bargaining agreement. It
is then not surprising that over the last couple
of years the emphasis has become more and
more on enterprise level bargaining, especially
if one looks at the mere number of collective
bargaining agreements that are concluded per
year.
4. Content of the Collective
Bargaining Agreements
Collective bargaining agreements in Belgium
deal with wages and working conditions in the
broadest sense. The 1968 Act states that it
determines individual and collective
relationships between the parties to it.7
A collective bargaining agreement is often
referred to as a double-yoked egg.8 This then
means that it has a double content: on the one
hand it regulates labour and employment
conditions for employers and employees, both
at a collective and at an individual level. This
all has a normative nature, imposing norms on
employers and employees and regulating their
specific conditions. The collective bargaining
agreement on the other hand also stipulates
rights and obligations of the parties who
conclude the agreement. This constitutes what
is referred to as the obligatory part of the
collective bargaining agreement.
With respect to the normative part of the
collective bargaining agreement a further
distinction needs to be made between the
individual and the collective normative part.
Individual normative stipulations are the rules,
which comprise the wages and working
conditions of the individual employees.
Stipulations about wages and benefits, cost of
living clauses (indexation of wages in line with
the increase of the cost of living), job
classifications, working time issues, holidays,
vacations etc. Collective normative
stipulations govern the collective relationship
between the social partners at the level the
collective bargaining agreement is concluded.
This could be the enterprise level or any higher
level of collective bargaining. Examples of
such collective normative stipulations are the
establishments, the conditions for
establishment, and the function of the trade
union delegation in the company, procedures
for the settlement of industrial disputes etc.