Brief Description of Employees’ and Employers’ Associations
The most important employers’ organisation in Belgium is the VBO/FEB (‘Verbond van Belgische Ondernemingen/Fédération des Entreprises de Belgique’). It is organised on a national scale and its members are the various employers’ organisations that are each active in a specific industry or sector. In addition, several regional employer organisations exist. By application of the constitutional freedom of association, employees have the right of decision whether or not to join a trade union. Any employer applying pressure to join or not to join a trade union will be liable to criminal sanctions. Closed shops and non-union shops are outlawed in Belgium.
In Belgium, there are no restrictions regarding the creation of a trade union. However, only a few unions, considered as representative, are granted by law a specific role and specific rights. The three main representative unions are:
- the Belgian General Federation of Labour (FGTB / ABVV);
- the Confederation of Christian Unions (CSC / ACV);
- the Central Organisation of Liberal Trade Unions of Belgium (CGSLB / ACLVB).
In certain fields, the Belgian National Confederation of Executives and Managerial Staff (CNC / NCK) is also considered a representative union. As their names suggest, the above-mentioned large unions federate several smaller trade union organisations, traditionally competent in a given geographical area and within a set branch of activities. Belgium’s trade union density lays just below 50%, making it one of the most unionised countries in the world. Therefore, the trade unions wield significant (social and political) power and employers are recommended to take this into account when e.g., they intend to measure impacting the working conditions as they might be met with resistance from the trade unions.
Rights and Importance of Trade Unions
Traditionally, unions choose not to organise themselves under a form that would entail a separate legal personality. As a result, they only exist as legal entities to perform specific acts that are assigned to them by law. Trade unions, but not their members, essentially enjoy immunity from responsibility. Representative unions have a place on the National Labour Council and the joint committees (committees at industry level where collective bargaining agreements are negotiated).
In addition, they have the power to: 1) conclude collective bargaining agreements with one or more employers or representative employers’ organisations; 2) put forward candidates for elections to the Works Council and the Committee for Prevention and Protection at Work; 3) ensure that the correct procedure is observed for the election of representatives; 4) depending on the circumstances, form a Trade Union Delegation within the company; 5) propose lay judges to sit on the labour courts and labour courts of appeal; 6) represent their members before labour courts; and 7) in some circumstances, engage in legal action on their own behalf in order to defend the interests of their members.
Other Types of Employee Representative Bodies
The representative bodies that must be set up within the Belgian undertakings if the conditions are met, include the Works Council, the Committee for Prevention and Protection at Work (CPPW) and the Trade Union Delegation. Works Councils must be set up in undertakings employing at least 100 employees on average. A Committee for Prevention and Protection at Work (CPPW) must be set up in undertakings normally employing at least 50 employees on average. The notion “undertaking” is to be understood as a “technical operating unit”, i.e. an entity having a certain social and economic autonomy, whereby the social criteria are considered as more important than the economic criteria. An undertaking does not necessarily correspond to the legal entity (incorporated company).
A Trade Union Delegation must be established at the request of one or more representative trade unions in undertakings employing a minimum number of employees determined by CBA. The employer is obliged to accept this request. In the event that there is no Works Council, the tasks of the Works Council are transferred to the Committee for Prevention and Protection at Work and/or the Trade Union Delegation.
Number of Representatives
The number of employee representatives within the Works Council and the CPPW depends on the number of employees employed within the undertaking at a certain time within the election procedure (see section 3 below) and ranges from 4 (for undertakings employing less than 101 employees) up to 22 employee representatives (for undertakings employing more than 8.000 employees). If the undertaking employs at least 15 managerial employees, the number of mandates within the Works Council (not the CPPW) will be increased with one or two. The employee delegation within the Works Council and the CPPW also consists of substitute members, equal to the number of effective members. The number of union representatives within the Trade Union Delegation is fixed by CBA entered into on industry level.
Appointment of Representatives
Both the Works Council and the CPPW are composed of an employer’s delegation and an employees’ delegation. The employer’s delegation consists of one or more acting or substitute members designated by management and chaired by the head of the undertaking. The employee representatives within the Works Council and the CPPW are union members, nominated by their union and elected within the frame of social elections, which must be organised by the employer every four years.
2020 is a social elections year (the most recent social elections took place in May 2016). The election process starts 150 days prior to the election date, so that Belgian employers had to start with the preparations of the elections in December 2019. The social elections were supposed to be held in May 2020, but they were postponed to November 2020 due to Covid-19. The members of the Trade Union Delegation are employees of the undertaking who are either appointed by the unions or elected by the other unionised employees of the undertaking (although not in the frame of social elections). Detailed regulations governing its establishment are laid down in CBAs concluded at industry and undertaking level.
Tasks and Obligations of Representatives
Works Council: a Works Council is a representative body at company level designed to foster information, consultation and collaboration between employer and employees. The Works Council has competence in four areas:
- the right to information;
- advisory competence;
- decisive competence; and
- organisational competence.
In terms of content, they are competent at the technical, economic and social level. For instance, the employer is obliged to provide the Works Council with economic and financial information concerning the undertaking at regular intervals. The Works Council also has a right to be informed (and in some cases consulted) regarding the employment structure of the undertaking, any planned changes and their consequences on the work force, as well as employment matters such as work organisation, collective lay-offs or closure, early retirement issues, time-credit, etc.
Committee for Prevention and Protection at Work (CPPW): the CPPW plays an advisory role in health and safety matters and is also closely involved in the recruitment of prevention officers.
Trade Union Delegation: the Trade Union Delegation is a body representing union members within the undertaking whose competencies include matters relating to (i) industrial relations (supervision of the observing of employment legislation) and (ii) negotiations for concluding Collective Bargaining Agreements (CBAs) without affecting existing CBAs or other agreements concluded at other levels. They also have a crucial role to play in conflict resolution and mediation between parties.
Other Types of Employee Representative Bodies
In addition to the representative bodies mentioned above, Directive 2009/38/EC aims to establish a European Works Council (EWC) or a procedure for informing and consulting employees in Community-scale undertakings and Community-scale groups of undertakings. This Directive has replaced Directive 94/45/EC, which was implemented by CBA no. 62. Directive 2009/38/EC was implemented by CBA no. 101 and by CBA no. 62 quinquies.
A “Community-scale undertaking” means an undertaking with at least 1 000 employees in the Member States and at least 150 employees in at least two different Member States. A Community-scale group is a group of undertakings meeting the following conditions:
- it has at least 1 000 employees in the Member States;
- it consists of at least two undertakings belonging to the group, in different Member States, and
- at least one group undertaking has at least 150 employees in one Member State, and at least one other group undertaking has at least 150 employees in another Member State.
The procedure for setting up a European Works Council is to be initiated either on the initiative of the central management itself, or at the written request of the central management by at least 100 employees, or their representatives, employed in at least two establishments, or two undertakings, situated in at least two different Member States. Next, a special negotiation group will try to set up a European Works Council, but they can also decide to stop the negotiations. The special negotiation group will determine the main tasks and competences of the EWC.