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Since the 1980s, and with increasing frequency, Belgian employers have been having recourse to the courts to influence the outcome of industrial disputes. Unilateral applications by employers for penalties to be imposed on strikers have often resulted in substantial fines being imposed by the courts. The trade union movement believes that the situation has become intolerable, and that it has called the right to strike fundamentally into question. In October 2001, the federal government announced that it intended to draw up a bill to deal with the issue, putting an end to the use of unilateral applications in industrial disputes.
The issue of the intervention of the courts in industrial disputes has become increasingly pressing in recent years, and especially the practice of employers making unilateral applications to the courts to have penalties imposed on strikers - a judicial procedure in which the workers involved have no say.
Historical overview
The law of 24 May 1921 repealed Article 310 of the Belgian Penal Code. Article 310 had stated that 'anyone who, seeking to raise or lower wages or undermine the free exercise of industry or work, commits violent acts, utters affronts or threats, or issues fines, interdicts, bans or proscriptions of any kind, either against those who work, or against those who have people work for them, shall be liable to imprisonment of a period ranging from eight days to three months, and a fine ranging from BEF 26 to BEF 1,000. This shall also apply to those who, by foregathering near establishments where work is carried out, or near the homes of those who manage that work, threaten the freedom of the masters or the servants.' Accordingly, the 'most peaceful picket line was punishable' and, 'in the event of a strike, the most minor misdemeanour, the most banal utterance directed at a non-striker, even a word that had no meaning, became a threat or an affront, and was punished. There were cases of strikers found guilty of laughing or shrugging their shoulders as non-strikers passed by' (according to Cent ans d'histoire sociale en Belgique, BS Chlepner, Brussels, ULB-Institut de Sociologie Solvay, 1958). Article 310 thus rendered strikes virtually impossible, and its repeal was the subject of a long trade union and political debate.
Following the decriminalisation of strike action by the law of 24 May 1921, there was almost no judicial involvement in collective disputes until the late 1980s.
Two industrial disputes were the subject of legal proceedings by employers in 1987. In the first case, the employer brought and won a case against a strike in the lower court and, for the first time, a fine was imposed on the strikers; the matter was later deemed by the president of a higher court, the Civil Tribunal (Tribunal Civil), not to be sufficiently urgent to be dealt with by means of emergency interim proceedings in the courts. In the second case, although the court said that it did not have jurisdiction, it nonetheless ordered that an occupied company be evacuated, under threat of a fine of BEF 1,000 per person and per offence.
In the view of the Belgian General Federation of Labour (Fédération Générale du Travail de Belgique/Algemeen Belgisch Vakverbond, FGTB/ABVV), these two court rulings were the 'trigger' for an upsurge in legal proceedings. A confidential memorandum issued at this time by the Federation of Belgian Enterprises (Fédération des Entreprises de Belgique/Verbond van Belgische Ondernemingen, FEB/VBO) stated that 'the opportunities that employers have ... in the field of collective industrial relations to go to court to obtain a judicial intervention must be protected', and recommended that 'these legal means are used fully when agreed rules are clearly being flouted, and when assaults [voies de fait] challenges important civil rights and individual freedoms.' For the employers, it was principally a matter of ensuring that other rights, including the right to work and private property rights, prevailed over the right to strike.
Following an appeal entered by a major retailer in 1997, the Court of Appeal (Cour de Cassation/Hof van Cassatie) determined that the courts had jurisdiction to: hear cases of 'assault' linked to strike action: determine the 'normal' exercise of strike action; and, to the extent that this was exceeded, rule against the relevant actions. Although this decision supported legal interventions in industrial disputes, it gave no indication as to what did or did not constitute a 'normal' strike. In this respect, the decision left the door wide open to nearly all attempts to lodge a legal challenge.
Recent interventions
The courts have intervened in industrial disputes on a number of occasions during 2001. At the beginning of the year, for example, the courts in Antwerp and Liège imposed restrictions preventing a meeting of strikers at a large bank, with penalties of BEF 10,000 (EUR 248) and BEF 100,000 (EUR 2,478) respectively per person banned from attending. It is noteworthy that these penalties were, as usual, imposed following a unilateral application by the management; in other words, the arguments of the workers were not even heard. Then in September, a Court of First Instance (Tribunal de Première Instance/Gerecht van Eerste Aanleg) ordered all the supervisory flight crew of a Belgian airline to cease all action - including strike action, harassment, stoppages, occupations or obstacles preventing freedom of movement - or face a penalty of BEF 100,000 (EUR 2,478) per day per person.
In the view of FGTB/ABVV, this latter decision 'not only deprives the staff concerned of their right to strike, but obliges them to return to work immediately'. The union also denounced 'a direct attack on the right to strike and the freedom to work, both of which are fundamental rights guaranteed by the European Social Charter'. FGTB/ABVV believed that 'the limits of what is acceptable have been greatly exceeded.'
Following a counter-action by a professional association, the Brussels Court of First Instance eventually restored the pilots' right to strike: in its judgment, the Court stressed in particular that no assault had been reported, and that the economic damage incurred by the airline formed part of the substance of the strike.
Political initiatives
For several years now, the involvement of the law in industrial disputes and the imposition of penalties have been the focus not only of trade union indignation, but also of political initiatives.
These initiatives have included a bill on the interpretation of Articles 6, 584 and 1385bis of the Judicial Code. This bill, which was lodged in both of the two previous legislatures, mainly seeks to outlaw the use of penalties in the field of collective labour relations, and to restrict the possibility of bringing unilateral actions (ie without the other party being heard). Although the proposal was the focus of several meetings of the Senate's Social Affairs Committee, it was systematically blocked at this stage.
Two new bills were tabled in autumn 2001: one by Socialist members of parliament, and the other by Ecologist members. The latter in particular aims to broaden the ban on court penalties 'in cases where the legal action triggering the main penalty has been initiated by a unilateral application relating to actions involved in the performance of contracts of employment or collective labour disputes'.
It is far from clear whether these bills have any better chance of succeeding than their predecessor. As Jacques Clesse, professor of social law at the University of Liège, stated recently, 'the debate will be political' and, in this field as in many others, 'consensus will be difficult'.
The Federal Minister of Employment and Labour stated several times that she intended to present a memorandum to the government with a view to the latter mandating her to draft a bill remedying these problems posed by the intervention of the courts in industrial disputes.
Trade union campaign
With the issue of the intervention of the courts in industrial disputes not having found a political solution, trade unions drew up a petition on the matter at the end of September 2001. The petition stated that:
In our countries, the nations that invented what is called the European model, democracy was initially circumscribed to the political arena, but has gradually extended to the social sphere, though without covering all of it - something that we deplore. Worse than that, fundamental gains have brutally challenged, and one of those gains is the right to strike.
We have got to face facts: the right to strike no longer exists in Belgium. There are virtually no actual or potential stoppages that do not attract penalties.
The management concerned makes a unilateral application to the president of the Court of First Instance, who then reaches a decision solely on the basis of the arguments of the employer, or a third party, without hearing what the strikers have to say. The penalties range from BEF 10,000 (EUR 248) to BEF 500,000 (EUR 12,395) per offencerecorded, and no one knows the logic by which the sums are determined.
Judges generally hold offenceto mean what happens when a striker places obstacles in the way of a worker in the firm, or a subcontractor or a client, gaining access to the enterprise.
When the threat of penalties becomes a reality, families find a bailiff coming to their homes and, with the assistance of police officers and in the presence of suspicious neighbours and terrified children, marking up the furniture that could be seized.
In other cases, judges have stood further back, ordering the workers to return to work immediately simply by banning the strike.
The courts usually justify their position by the need to prevent employers or third parties from suffering economic loss. No mention is made of the social loss - which often involves dismissals - that provoked the response of the workers in the first place.
The signatories to the petition called for: 'collective disputes to be governed by regulations negotiated in ad hoc joint bodies. Recourse to the courts must be banned. The imposition of penalties in strikes must be banned by law.'
Recent developments
The trade union petition had scarcely begun to circulate when, in the government statement of 9 October on federal policy for 2002, the Prime Minister announced that a bill would be drafted aimed at putting an end to the use of unilateral applications in industrial disputes. According to the press, in the event of a case being brought, the bill will provide for the urgent appointment of an official conciliator to reopen dialogue and, if that fails, hand the task of mediation over to the Labour Tribunal (Tribunal du Travail/Arbeidsrechtbank). This court, which is made up of a professional magistrate assisted by two 'wing members' (one from the employers' side, and one from the trade unions), will have to try and find an agreement between the parties, but not to seek to resolve the question of who is right and who is wrong.
The government initiative was warmly received by the trade union movement, but it enraged employers' representatives: for example, the president of FEB/VBO described it as a 'declaration of war' and 'unacceptable interference in industrial disputes'. The FEB/VBO's delegate administrator spoke of a 'bomb' placed 'under social concertation'; he went on to say that his organisation felt 'under attack from the law on all fronts'. FEB/VBO felt that the government bill would make the employers powerless in the face of assaults committed during strikes, and would help to give the right to strike primacy over other rights, such as the right to work.
Following the employers' angry response, the Vice-Prime Minister, who has responsibility for the Ministry of Employment and Labour, stated clearly that 'recourse to unilateral applications is what hinders concertation. The avoidance of social dialogue sparks off disputes. I will not have it when isolated strikers act as 'loose cannons', or when loose cannons among the employers decide that a strike is an 'assault' and file unilateral applications.'
Commentary
Positions over the issue of judicial intervention in strikes are clearly very entrenched, and the government bill will undoubtedly stimulate much comment in the coming months. (Jean Vandewattyne, Institut des Sciences du Travail, UCL)