Worker participation - Belgium

Introduction

Worker participation relates to the involvement of workers in management decision-making processes. The means for worker participation are other than information and consultation, as defined by the European Foundation for the Improvement of Living and Working Conditions (Eurofound) ^[1].

Worker participation can refer either to direct or indirect participation. Indirect participation involves employee representation, while direct participation relates to individual involvement.

The article goes beyond the concept of involvement of workers in management processes and broadens its scope to information and consultation, mainly with regard to OSH-related matters on three levels: cross-industry, sectoral and company. It describes both direct and indirect participation forms with a focus on formal participation structures. An overview of methods of worker participation can be found in Methods and effects of worker participation and Occupational safety and health management systems and workers’ participation.

Regulatory framework for worker participation

Employee participation is referred to in Council Directive 2001/86/EC ^[1] and complements the Statute on the European Company with regard to the involvement of employees. Several models of participation by agreement are possible, the most important is the board-level representation of employees. If there is no arrangement, a set of standard rules on worker involvement becomes applicable.

Information and consultation

At the international level, regulatory provisions on worker participation are contained in Article 19 of ILO Convention C-155 ^[3]. Article 12 of the (non-binding) ILO Recommendation R-164 ^[4] describes more specific rights and possibilities for employees and their representatives with respect to worker participation. Recommendation R-129 contains general recommendations on communication between employers and workers ^[5]].

The European Directive 2002/14/EC ^[6] establishes a general legal framework for informing and consulting employees in the European Community. The directive makes it a requirement for employers to inform and consult employees via the workers’ representatives in the company, in three specific areas: - the recent and probable development of the undertaking's or the establishment's activities and economic situation; - the situation, structure and probable development of employment and any anticipatory measures envisaged; - decisions likely to lead to substantial changes in work organisation or in contractual relations.

The Directive was transposed into Belgian law by the Law of 23 April 2008 supplementing the transposition of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community ^[7].

The main legal source Legislation for worker information and consultation on OSH on a European level is the OSH Framework Directive 89/391/EEC ^[8]. Worker participation is a fundamental part of the OSH management framework promoted in this directive. In Belgium the Framework Directive was transposed by the Law of 4 August 1996 on the well-being of workers while performing their work ^[9]. The law formed the basis for a thorough reform of the legislation on health and safety at work.

With regard to workers’ consultation and workers' representative rights the law provided for the setting up of a Committee for Prevention and Protection at Work, with the following significant differences compared with the previous regulations: - in firms with more than 50 employees where no committee is established, the work of the committee may also be carried out by the trade union delegation; - if there is no committee or trade union delegation, the workers themselves are consulted directly.

All Royal Decrees implementing the Framework Directives also contain provisions on dialogue between employers and workers as well as on workers’ consultation.

OSH and worker participation

The Belgian system of social dialogue in the private sector consists of three levels: cross-industry, sectoral and company. This institutional system of negotiations at various levels between the social partners results in the conclusion of collective labour agreements (CLAs). Joint committees have been set up to negotiate CLAs in each sector of activity.

Cross-industry level

In Belgium there are three consultative bodies which provide a forum for advice and dialogue between the social partners on socio-economic federal matters OSH system at national level - Belgium: the National Labour Council (CNT/NAR) ^[10], the Supreme Council for Health and Safety in the Workplace (CSPPT/HRPBW) ^[11] and the Central Economic Council (CCE/CRB) ^[12]. The first two of these are especially involved in consultations on social matters.

The National Labour Council

The CNT/NAR or National Labour Council is a national and interprofessional joint body responsible for social matters. It was established by the Law of 29 May 1952 ^[13].

Composition Representatives of the representative and most important employers’ and workers’ organisations sit on the council. The plenary council of the CNT/NAR meets at least once per quarter, and in practice meets monthly. During these sessions negotiations take place on the conclusion of collective agreements. It is a condition that at least 50% of the members must be present on every occasion, together representing at least 90% of the members of both employers’ and workers’ organisations.

Formal opinions The CNT/NAR has a predominantly advisory role. It provides the Government or Parliament with advice and makes proposals relating to general social problems that concern employers and employees. It can also act in the place of a non-functioning joint committee. Since 1986, the CNT/NAR has also agreed CLAs of national and interprofessional scope. These agreements are usually declared generally binding by Royal Decree.

The formal opinions issued by the CNT/NAR can be searched and consulted online ^[14].

The Supreme Council for Health and Safety in the Workplace

In 1999 the Supreme Council for Health and Safety in the Workplace replaced the Supreme Council for Safety, Health and Design Improvements in the Workplace ^[15]. The Council was reformed in 2006, so that it now also includes all committees on which the social partners are represented and which are covered by the legislation on occupational well-being.

Composition The Supreme Council for Health and Safety in the Workplace consists of a chairman and a deputy chairman, an equal number of representatives of the employers’ and workers’ organisations, one or more secretaries, a number of expert officials, and sectoral representatives nominated by the social partners. As in the National Labour Council, the social profit sector is also represented in the Supreme Council.

Formal opinions The Supreme Council’s primary role is to provide formal opinions, on request, on measures that relate to the domains referred to in the Law of 4 August 1996 on the well-being of workers during the performance of their work [9]. However, the Supreme Council may also, on its own initiative, hold discussions and provide advice on such matters. It also gives an opinion on the annual reports drawn up by the General Directorate for the Control of the Well-being at work ^[16] and the General Directorate for the Humanisation of Work ^[17].

It also gives an opinion on the reports drawn up by the government for the European Commission on the practical implementation of the directives on the well-being of the employees whilst performing their work and is informed about the activities of the European Union in this field.

The formal opinions issued by the Supreme Council can be searched and consulted online ^[18].

Sectoral level

There is a joint committee for each industrial sector, made up of an equal number of representatives of the relevant trade union centres (workers) and employers’ organisations.

The joint committees are bodies established under the Law of 5 December 1968 on collective labour agreements and joint committees ^[19] in order to group companies with similar activities together and devise regulations suited to working conditions.

The committees negotiate collective labour agreements (CLAs) per sector of activity. A CLA is an agreement concluded between one or more workers’ organisations and one or more employers’ organisations or one or more employers, and in which individual and collective relations between employers and employees in companies or in an industrial sector are established and the rights and obligations of the contracting parties laid down.

These CLAs are binding and relate to working conditions, pay and management of labour relations. The joint committees prevent or mediate in labour disputes, and also have an advisory role towards the National Labour Council (CNT/NAR), the Central Economic Council (CCE/CRB) and the Government.

They are made up of joint subcommittees, which are subdivisions established for a specific territory or sector of activity. Representative organisations can be represented on the joint committee.

Certain categories of employee are not eligible for the joint committees: - persons employed by the State, the Communities, the Regions, the community committees, provinces, municipalities, government agencies subordinate to these, and public utility institutions with the exception of a number of public institutions listed in Article 2, § 3 of the Law of 5 December 1968 on collective labour agreements and joint committees ^[20] ; - persons employed in vocational training centres under the legislation on employment or vocational training of job-seekers; - state-funded personnel working in subsidised private education institutions; - employees recruited on the basis of a local employment agency labour agreement.

Public sector Collective labour relations in the public sector are regulated by the trade union status of civil servants defined in the Law of 19 December 1974 ^[21] and its implementing decrees.

Trade union status applies to employees in: - the federal, community and regional administrations, public institutions and public enterprises; - the regional and local administrations (provincial and municipal administrations, public well-being centres, local companies such as water production and distribution boards, etc.); 
 - official education (community, provincial and municipal education).

However, the Law of 19 December 1974 does not apply to subsidised private education, public transport (bus, tram, metro) and the public credit institutions. They are subject to the legislation on works councils and committees for prevention and protection at work.

The Law of 21 March 1991 ^[1] gives public enterprises (the Belgian Railway Corporation, the Postal Service, Belgacom and Belgocontrol) autonomous status with specific arrangements for collective labour relations. There is a joint committee within each public enterprise. The overarching Public Enterprises Committee is formally responsible for all public enterprises.

Company level

The Belgian legislators and the social partners have created a relatively extensive indirect participation structure at company level. Formalised social dialogue at this level takes place through the trade union delegation, the works council and the committee for prevention and protection at work. Only the latter one is specifically concerned with OSH matters.

These consultative bodies are related to employment thresholds. For the changes resulting from Directive 2002/14/EC on informing and consulting employees ^[23] , a threshold of 50 employees was defined for setting up a committee for prevention and protection at work. At companies with upwards of 100 employees, a works council was also required. At the request of the trade unions, a trade union delegation can also be present as well as these bodies.

Indirect participation

Works council

Regulatory framework The Law of 20 September 1948 organising economic life regulates the establishment of works councils in all companies with at least 100 employees and their renewal in all companies with at least 50 employees ^[2] . ‘Companies’ in this context means both companies in the private sector with a commercial or industrial purpose and non-profit enterprises such as social and health services (hospitals) and educational institutions.

Composition The works council is primarily a consultative body between the employer and the employee representatives. As a bipartite body, the works council consists firstly of the head of the company and the delegates designated by him, and secondly of the employee representatives who are elected every four years by the company’s employees from a list of candidates nominated by the representative organisations of workers and executives.

Social elections Every four years, social elections are held for personnel delegates on the works council and the committee for prevention and protection at work. The candidate lists can be submitted by the trade union centres (a trade-union-affiliated association of workers from the same or related sectors) of the three recognised trade unions (the General Belgian Trade Union FGTB-ABVV ^[25], the General Catholic Trade Union CSC-ACV ^[26], and the General Federation of Liberal Trade Unions CGSLB-ACLV ^[27]).

These unions must put forward three lists for the committee for prevention and protection at work: one for blue-collar workers, one for white-collar workers and one for young workers (if there are 25 employees under the age of 25). The same applies to the works council, but here a fourth list must also be put forward for the executives (if at least 15 executives are employed). This last list can be put forward by the three trade unions or by the National Confederation of Executive Personnel (CNC-NCK) ^[28]. Committees for prevention and protection at work are set up in companies with at least 50 employees; companies with 100 or more employees are required to establish a works council.

The trade unions should as far as possible ensure that there is diversity in the lists (gender, different sections of the company, ethnicity). In addition, candidates must be employed in the company, have uninterrupted seniority of six months on the day of the election and belong to the employee category for which they are standing. Finally, there is no nationality requirement and management personnel and health and safety advisers are not allowed to stand for elections.

The social elections take place in about 6,000 Belgian companies. The most recent social elections were held in May 2012 and led to the creation or renewal of approximately 10,600 bodies: 3,800 works councils and 6,800 committees for prevention and protection at work. The results of the elections for each trade union are available on the website of the Federal Public Service Employment, Labour and Social Dialogue ^[29].

Duties The works council discusses and negotiates about the work rules and working conditions, monitors the company’s economic and financial situation, gives advice and formulates proposals on the functioning of the company.

Meetings The works council must meet at least once a month on the invitation of the head of the company. The chairman is in principle the head of the company or someone authorised by him to take the chair, and therefore able to make binding agreements on his behalf.

Occupational committee for prevention and protection at work

Regulatory framework The term ‘committee for prevention and protection at work’ (CPPT-CPPW) primarily refers to the committee elected by the employees in the social elections. For the private sector, Article 49 of the Well-being Law ^[30] stipulates that there must be a CPPT-CPPW in any company which usually averages at least 50 employees.

If no committee is elected, the trade union delegation takes on the role of CPPT-CPPW within the company, and if there is no trade union delegation, Article 53 of the Well-being Law requires the employer to consult the employees directly on matters concerning their well-being at work. In the event of direct participation, the employer must provide a register in which the employees can give suggestions, comments or opinions. In addition, there must be a noticeboard or other means of communication (e.g. email) by means of which all employees can be reached.

The Royal Decree of 3 May 1999 on the roles and functioning of the committee for prevention and protection at work is the basic decree defining the powers of the CPPT-CPPW ^[31]. A number of provisions of the Royal Decree always have to be adhered to, regardless of whether there is an elected committee or trade union delegation. These are the provisions relating to the committee’s roles and the employer’s obligations.

Other provisions concerning the functioning of the committee only apply when there is an elected committee. The provisions on internal regulations likewise only apply to elected committees. This does not mean that these provisions may not be applied when there is no elected committee. When there is only a trade union delegation or in public enterprises where no committee is elected, the employer and employees can still agree to apply these provisions, but they are not enforceable.

Public sector Under Article 11 of the Law of 19 December 1974 ^[32] and Article 39 of the Royal Decree of 28 September 1984 ^[33], all powers held in private companies by the committees for prevention and protection at work are exercised in government departments by the competent consultation committees.

The consultation committees have the same powers, even though they are not legally enforceable, as those prescribed for the committees for prevention and protection at work under the provisions of the Royal Decree of 3 May 1999 on the roles and functioning of the committees for prevention and protection at work ^[34].

Composition The CPPW is jointly composed of the head of the company on the one hand and employee representatives from the company on the other. The employer appoints the members of his delegation from among the management personnel, while the trade union delegation is elected from among/by the workers themselves in social elections. The health and safety officer also sits on the committee.

Roles In application of Article 65 of the Law of 4 August 1996 ^[35], the committee’sprimary role is to identify and propose all resources and actively contribute to all measures taken to promote the well-being of the employees during the performance of their work. This includes issuing prior opinions, giving prior consent, devising proposals, the right to information, appointing a delegation and various specific powers.

The committee issues prior opinions on measures relating to company policy, health and safety measures, services used and the internal service for prevention and protection at work. The committee gives its prior consent on a number of issues, such as the minimum working time of the health and safety adviser so that the internal service can always carry out its duties fully and effectively.

As well as giving opinions the CPPT-CPPWs also make proposals on the policy on well-being of workers during the performance of their work. The CPPT-CPPW gives its views on the overall health and safety plan and the annual action plan drawn up by the employer.

Finally, the CPPT-CPPW also has a right to information. The employer is required to provide the committee with all necessary information to enable it to give properly informed opinions. To this end, the employer must compile documentation on the issues relating to the well-being of the employees in the performance of their work and on the internal and external environment, and must keep these available for the committee.

Specific roles of the committee in relation to the internal service for prevention and protection at work (SIPP-IDPB): The Royal Decree requires the committee to encourage the activities and monitor the functioning of the internal service for prevention and protection at work.

The committee is required, in cooperation with the competent health and safety adviser and the responsible member of the line management, periodically and at least once a year to carry out a thorough inspection of all workplaces for which the committee has powers. If the company has several sites and the committee is empowered for all these sites, it must perform this role at all the sites. However, if different committees exist within the company, each committee is empowered only for those sites for which it has been elected. In this case the committee accompanies the health and safety adviser from the relevant section of the SIPP-IDPB.

If the SIPP-IDPB includes a department tasked with medical surveillance, then the committee must examine the department’s activities at least twice a year during its meetings on the basis of a report prepared by the health and safety adviser / occupational physician.

Article 17 stipulates that the employer must allow the committee members and the health and safety adviser all contacts necessary for the performance of their roles.

Consent and opinion of the committee: Certain provisions of the Royal Decree on the SIPP-IDPB require the employer to seek the committee’s consent before taking a decision.

In some cases, the Royal Decree on the SIPP-IDPB ^[36] stipulates that the employer must comply with a formal opinion issued by the committee for prevention and protection at work – specifically on determining the competencies present in the SIPP-IDPB and the competencies for which the employer will rely on an external service, the composition of the SIPP-IDPB and the resources available to it.

Article 19 of the Royal Decree on the committee ^[37] stipulates that the employer must comply with formal opinions within the time period set by the committee, or, if no period is specified, within six months. If the employer has not acted in accordance with the opinion, complied with it or made a choice among divergent opinions, it must inform the committee of the reasons for this. It must also explain measures that have been taken in legally defined urgent cases without consulting or informing the committee beforehand.

Informing and consulting employees: additional economic and social powers of the CPPT-CPPW: In 2008, Directive 2002/14/EC gave the CPPT-CPPW special economic and social powers ^[38] .

The Belgian Official Gazette of 16 May 2008 published the Law of 23 April 2008 supplementing the transposition of Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community ^[39].

The purpose of this law is to transpose fully into Belgian law Directive 2002/14/EC ^[40], which creates a right for workers to be informed and consulted through their representatives on certain economic and financial aspects and certain aspects of employment, organisation of work and labour agreements.

The Law of 23 April 2008 ^[41] ensures that the right to information and consultation on the matters referred to by the Directive is guaranteed in companies which have between 50 and 99 employees and which have no works council or trade union delegation. To this end, the law extends the powers of the CPPT-CPPW. Employers in these companies are now required to inform and consult the committee for prevention and protection at work with regard to the economic and financial situation and future of the company.

Training Members of the CPPT-CPPW are entitled to appropriate training, as stipulated in Article 30 of the Royal Decree of 3 May 1999 on the roles and functioning of the committees for prevention and protection at work ^[42].

Information and frequency The committee must be provided with sufficient accurate, clear and usable information to be able to make an active contribution to employee well-being. The general health and safety plan, annual report and monthly reports of the internal service for prevention and protection at work and the annual action plan are indispensable tools.

Meetings In the private sector, the committee for prevention and protection at work must meet at least once a month. Monthly meetings are also recommended in the public sector in order to effectively promote well-being. The secretarial work of the committee meetings is dealt with by the internal service for prevention and protection at work (SIPP-IDPB) and if the SIPP-IDPB has departments, by the relevant department of the SIPP-IDPB.

Trade union delegation

Trade union delegates are employees of the company who are elected or appointed to represent the union-affiliated employees in dealings with the employer. They perform the roles of the works council and/or the CPPT-CPPW in the absence of these bodies.

Regulatory framework CLA no. 5 of 24 May 1971 ^[43] concluded in the National Labour Council regulates the status of the trade union delegation of a company’s personnel. The status of the trade union delegation is governed by collective labour agreements. This means that only employers who fall within the scope of the CLA law are required to recognise a trade union delegation in their company. In addition, there are several laws and decrees that grant certain powers to the trade union delegation in the absence of a works council and CPPT-CPPW.

Powers CLA no. 5 ^[44] states that the powers of the trade union delegation relate among other things to acting in connection with labour relations, negotiations with a view to concluding CLAs and monitoring the application within the company of social legislation, CLAs, work regulations and individual employment contracts.

Consultation The members of the trade union delegation are heard in the context of a (potential) dispute or conflict of a collective nature. In the case of individual complaints they support employees and they have a right to prior information on changes that may affect contractual and customary employment and remuneration conditions.

The term of office of the members of the trade union delegation is four years. The appointments are renewable.

Direct participation of workers in connection with well-being

Regulatory framework For the private sector, Article 49 of the Well-being Law [9] states that there must be a committee for prevention and protection at work in any company, which usually employs an average of at least 50 workers. In a company where no committee is established, the committee’s tasks are exercised by the trade union delegation.

Article 53 of the Well-being Law further stipulates that in a company where there is neither a committee nor a trade union delegation, the employees themselves must have a say in well-being issues [9]. The Royal Decree of 10 August 2001 ^[45] regulates the manner in which this direct participation should take place. To this end, a number of provisions were introduced by the Royal Decree of 3 May 1999 on the roles and functioning of the committees for prevention and protection at work [^[46].

The employer must provide a register in which the employees can record their suggestions, comments or opinions. In addition, there must be a noticeboard or other means of communication (e.g. email) by which all employees can be reached. The details of the external service must be displayed on this, along with those of the supervisory officials.

Procedures There are two procedures for direct participation: one where the initiative comes from the employer and one where employees take the initiative.

On the employer’s initiative: The employer must seek the prior opinion of either the internal or external prevention service, depending on whether the subject falls within the scope of one of the other service according to the information provided in the identification document of its internal prevention service.

The employer must explain his proposal and the opinion received to the employees. The employees then have 15 days to submit comments either in the appropriate register, or to the internal prevention service (or the external prevention service if the employer himself is the prevention adviser). The prevention service must inform the employer of the comments and its opinion within fifteen days. If there are no comments from employees, the employer’s proposal is accepted. If there are comments, the employer will take the comments made and the opinions given into account. If he does not, he must justify his decision.

On the employee’s initiative: Employees can also spontaneously make proposals on issues relating to the well-being of employees during the performance of their work. They can either record their proposal in the appropriate register, or contact the internal prevention service directly (or the external prevention service if the employer himself is the prevention adviser).

If employees use the register and the employer is considering not acting upon the proposals, he must seek the advice of the prevention service with competence for the area concerned, as indicated in the identification document.

If employees contact the internal prevention adviser directly, he must communicate his proposals and opinion on the matter to the employer within 15 days. The advice of the prevention adviser may be that an opinion should be sought from the external service if the matter is reserved for the external prevention service according to the information in the identification document.

If employees contact the external service directly, in the event that the employer himself is the prevention adviser, this service must give its proposal and advice to the employer within fifteen days. If the employer does not act on the advice given, he must justify his decision.