Thematic feature - individual labour/employment disputes and the courts

This article examines how individual labour/employment disputes are handled through the courts in Belgium, as at March 2004.

In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Belgian responses are set out below (along with the questions asked).

System

Please give a brief description of how disputes concerning individual employees' employment and labour rights are handled in your country by courts, tribunals or other official judicial bodies.

Social law (droit social/sociaal recht) in Belgium covers:

• the legal regulations governing aspects of employment conditions - pay, working hours, part-time work etc. In most cases, when legal action is taken in this area, it is in a criminal court and may result in penal sanctions, in the form of either administrative fines or penal fines or prison sentences (this ares is known as penal social law);
• the individual relationship between employer and worker. This concerns disagreements between employers and workers in relation to their contract of employment. These matters are dealt with in the labour tribunals (Tribunaux du Travail/Arbeidsrechtbanken) (non-penal social law); and
• collective employment relationships. Disputes in this area are dealt with by conciliation or by the courts.

It is non-penal social law that is most relevant here, and the competent first-instance bodies are the labour tribunals, of which there are 27 at district level. Appeal is to a labour court (Cour du Travail/Arbeidshof), of which there are five, each covering a group of provinces. The labour tribunals and labour courts have general competence with regard to non-penal social law and particularly in relation to:

• disputes relating to contracts of employment - workers’ contractual responsibilities, obligations of the parties as a result of the termination of a contract etc;
• disputes of an individual nature relating to collective agreements;
• disputes relating to any of the social security regimes involving employees or self-employed workers or their authorised representatives; and
• social assistance matters - eg relating to a social assistance centre (Centre Public d’Action Sociale/Openbaar Centrum voor Maatschappelijk Welzijn, CPAS/OCMW) or disability benefits.

It should be noted that social law governs the exercise, or the consequences of exercising, a work activity as a self-employed or employed person. It does not, therefore, cover civil servants who are not bound to their employer by a contract, but by statute.

Labour tribunals are composed of labour tribunal judges and of lay judges (juges sociaux/rechter in sociale zaken). The former are professional magistrates with legal qualifications, who preside over the tribunals’ hearings. The latter are non-professional judges who assist the professional judge. They are drawn from lists of representatives of employers, employees and the self-employed, nominated by their various representative organisations. Moreover, the tribunal also includes a labour prosecutor (auditeur du travail/arbeidsauditeur), who represents the public interest, and clerks of the court.

In a similar way, labour courts are composed of professional magistrates and 'social counsellors'- who perform the same role as the lay judges in the labour tribunal - plus prosecutor and clerks. Thus, the social partners participate in administering employment- and social-related justice in order to complement the legal knowledge of the professional magistrates with 'day to day practical experience' (see Introduction au droit social, C Wantiez, 4ème édition, De Boeck-Wesmael, Bruxelles, 1995).

The various parties can be represented before the labour tribunals and courts by a lawyer, a spouse or parent or, in the case of employed or self-employed workers (but not employers), by a delegate of a representative organisation. In general, trade unions provide legal assistance for their members. This covers:

• a number of 'first-line' services (eg information, advice, attempts at out-of-court settlements);
• legal defence; and
• medical advice.

Trade unions assist both employed workers and social security claimants in the various areas of social law, and public service employees in the event of disputes involving their statute, social security, working conditions etc.

For matters brought before the labour tribunals/courts, there are various types of recourse following rulings:

• when a decision has been reached by default (ie when the losing party failed to appear before the court), the case may be brought back to the court and a new decision asked for (known as 'opposition');
• a party that feels it has not been dealt with correctly in a tribunal may lodge an appeal with a labour court, in principle within a period of one month (or 15 days in cases relating to elections of representatives);
• the Supreme Court of Appeal can adjudicate on the legality of decisions handed down - though this procedure is exceptional; and
• recourse to the Arbitration Court is possible in cases where a citizen’s rights under the law have been violated.

Number of cases/disputes and costs

How many cases have been dealt with in your legal system by each category of court? Where possible, please provide statistics on the number of disputes in your country each year from 1990 to 2003 (or the latest year for which data are available). Where possible, please provide statistics on costs.

Annual data are available from the Federal Public Service of Justice for the number of new cases and of cases dealt with by various courts - see tables 1, 2 and 3 below

There were 166 social cases pending before the Supreme Court of Appeal at the beginning of 2003, while in the first quarter of the year 57 new cases were brought and 101 judgments announced.

The number of penal cases in the fields of employment and social security pending before magistrates courts at the beginning of 2002 stood at 1,391 (0.34% of all pending cases). The number of penal cases in the fields of employment and social security that were completed in 2002 stood at 1,971 (0.21% of the total)

No information is available on the costs of bringing individual labour/employment disputes to court, though this is not thought to very high in comparison with other areas of litigation.

Litigation timeframe

Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.

See tables 1, 2 and 3 above for the number of cases closed or otherwise each year. No information is available on how quickly individual disputes are settled, though they appear to be handled in a relatively short period in comparison with other areas of litigation.

Other means of resolving individual disputes

Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?

Strictly speaking, there is no conciliation or mediation mechanism organised in a precise manner for individual disputes. A legal conciliation system used to exist but has been rendered ineffective. Some parties, however, are trying to resurrect mediation structures in employment law.

In practical terms, whenever there is a dispute between an employer and a worker, trade unions can try to find an amicable solution before taking legal action. Union delegations have a right to be heard by the employer and to defend the worker.

In addition, there is a 'social conciliation' procedure whose purpose is to prevent disputes between employers and workers, but its main concern is collective disputes. This procedure may, nevertheless, be activated in cases of individual disputes if they present a risk to the collective interest. Social conciliation takes place within sectoral joint committees and subcommittees.

Debate

Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.

One current debate relates to the position of labour prosecutor (see above under 'System'). The labour prosecutor represents the public interest in labour tribunals/courts, in the same way as the director of public prosecutions does in other jurisdictions. The government has recently proposed integrating the function of the labour prosecutor into the general public prosecution regime, so that there would be a single public prosecutor within the courts system, with a section specifically to deal with social and economic cases (as these two areas are often linked). This plans has not yet come to fruition, mainly because of a degree of reticence on the part of the labour prosecutors.

A second debate concerns the system whereby professional and lay judges sit together on labour tribunals/courts. Objections have been raised to the presence of trade union representatives among lay judges in cases that concern trade unions. However, this issue has not yet been taken any further.

Beyond these two discussion points, it would seem that that the overall position with regard to the handling of individual labour/employment dispute cases, as compared with other jurisdictions, is not a matter for significant debate. The costs of the procedures are not very high and cases are handled in a relatively short period. Finally, there appears to be a trend towards a decrease in the number of disputes that come before the labour tribunals. (Alexandre Chaidron and Marinette Mormont, Institut des Sciences du Travail)