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Workplace Representation

 

Belgium has structures at workplace level representing both all employees and trade unionists, but, with only trade unions able to nominate to the works council, the key body is the union delegation. It is the union delegation which negotiates key issues with management, although the works council has extensive information and consultation rights. The works council also has decision-making powers in some areas.

Workplace representation in the private sector in Belgium runs through two separate channels. The works council (CE in French/ OR in Flemish) represents the whole workforce, although it is only elected in larger workplaces (above 100 employees). The trade union delegation (DS/SD) represents trade unionists. There are also separate bodies for health and safety (CPPT/CPBW) elected by the whole of the workforce, provided there are more than 50 employees. Where there are between 50 and 100 employees, these health and safety committees also have information and consultation rights on economic and social issues. These rights were introduced in 2008 to give effect to the EU directive on information and consultation (2002/14/EC).

 

In practice, particularly at smaller workplaces, the individuals involved will often be the same in both the works council and the trade union delegation. The two bodies have different functions, but generally it is the trade union delegation which plays the central role, particularly in workplaces where there is conflict with the employer.

 

Both elements of the system of representation have a clear legal basis. The powers and operation of works councils are set out in a law on the organisation of the economy first passed in 1948 and subsequently amended. The legal position of the trade union delegation, on the other hand, is determined by a series of legally binding collective agreements, with a national level framework agreement (known as CCT/CAO No. 5) signed in 1971 and agreements for individual industrial sectors reached later. These agreements cover the vast majority of employers, although the details vary.

 

The position in the public services is broadly similar with a structure of consultation committees and parallel negotiating committees ranging from the local level to the top of the authority concerned. The names vary but at the local level the consultation committees are known as the Comité de concertation de base/Basisoverlegcomité. The structure of committees with negotiating rights covers many of the same issues which are negotiated by the trade union delegation in the private sector.

 

The law on works councils is enforced through regular checks by the labour inspectorate, although the fact that it only applies where there are more than 100 employees means that many employees are not covered by works councils, although they may have a health and safety committee or a trade union delegation.

 

Figures from the 2013 European Company Survey show that, on average, 54% of all Belgian workplaces with more than 10 employees had some form of employee representation, well above the EU28 average of 32%. For workplaces with 50 or more employees – the threshold for a health and safety committee – the figures are much higher, 82% for workplaces with between 50 and and 249 employees and 98% for those with more than 250.[1]

Numbers and structure

 

Works councils should be set up in all workplaces with at least 100 employees and, in companies with between 50 and 100 employees, the health and safety committee (CPPT/CPBW) has some of the information and consultation rights exercised by the works council in larger companies. Where there are workplaces in a company which individually employ fewer than these thresholds but together go beyond them, they must be linked together so that a works council or health and safety committee can be established.

 

The works council has both elected employee members and representatives of the employer, although there can never be more employer than employee representatives.

 

Employee representatives on the works council are elected on the following basis:

 

Number employed

Number of employee representatives

101-500

6

501-1,000

8

1,001-2,000

10

 

 

In calculating whether a workplace is above the threshold for a works council or a health and safety committee the employer must count all employees and apprentices with a contract of employment, including temporary workers. There is no age or service requirement. The calculation includes senior managers (providing they have a contract of employment and are not in overall charge of the company), home workers and students. Agency workers must also be included, unless they are replacing staff whose contracts have been suspended. Part-time workers, if they work less than three-quarters of the normal working week, are counted as half an employee for the calculation.

 

Manual and non-manual employees should be represented in proportion to their number in the workforce (there are separate lists for the two groups) and separate representation within the works council is guaranteed for young workers (aged under 25) and for senior management, once their number reaches a certain level: 25 for young workers; 15 for senior managers.

 

The works council is chaired by the senior representative of the employer, while the secretary comes from the employee delegates. The works council must meet at least once a month and the employee members have the right to meet separately before the meeting.

 

The numbers in the trade union delegation as well as the thresholds for setting one up depend, like all the other regulations governing its operations, on the legally binding agreement reached for the particular sector. There are wide variations. Some agreements have no thresholds, others set them at 10, 50 or 75 employees and in some cases the agreements also stipulate a minimum trade union presence. The number of members typically ranges from two to perhaps eight depending on the number of workers, with a workplace of 300 employees normally having a trade union delegation of four or five.

 

Trade union delegations consist entirely of trade unionists, with the different unions in the workplace represented according to their relative strength. Normally members from different unions (usually two) meet separately before the joint meeting.

 

Tasks and rights

 

The role of the works council is essentially to be informed about a range of economic and financial issues and to be informed and consulted about employment and personnel issues. It also has some limited decision-making powers, primarily over personnel issues.

 

The law lays down rules on how often different types of information should be provided. On economic and financial issues, the works council’s rights are essentially limited to being informed. Management must provide a range of basic information on the general position of the company every four years, when the works council is newly elected. The legislation (a Royal Decree from November 1973) provides that 10 issues must be covered in this way. These are the company’s:

  • legal status;
  • competitive position in the market;
  • production and productivity;
  • financial structure;
  • budget and price calculations;
  • staff costs;
  • programme and future prospects;
  • research programme;
  • public aid received; and
  • organisation chart.

 

This information is updated on an annual basis, and it must be presented as a written report to the works council each year, together with the financial results, a report from the management and a report from the auditor. In addition, every three months the management must present the current position and indicate how it diverges from its plans. Information on new economic or financial developments that could seriously affect the business must be presented to the works council without delay. The works council can also ask for the help of the auditor to explain and analyse the information it has received.

 

The situation is similar for information on employment. Each year the company must also provide the works council with a report setting out:

  • the structure of employment in the company (numbers of employees broken down by sex, age, occupational grouping, department and employment status);
  • the development of employment over the previous period (numbers leaving, joining and changing their position within the company, including details of whether the departures were voluntary or compulsory, and information on the number of staff employed on a temporary basis – either directly or as agency staff); and
  • forecasts for employment in the future (indicating whether numbers are expected to increase, decline or remain unchanged, and, if employment is expected to fall, the employer’s plans to deal with this).

 

This information should also be updated every three months, with the employer required to inform the works council in advance if important employment decisions, such as collective redundancies or major recruitment programmes are planned, where the works council also has consultation rights (see below).

 

Both in relation to economic and financial issues and to employment, the information must be provided in a way which is coherent and comparable with previous material, and there must be an opportunity for an exchange of views and for the works council to be able to make proposals.

 

In other areas the works council has more specific consultation rights. These cover:

  • work organisation;
  • working conditions and performance – where the works council must be consulted on any proposed changes; personnel policies – such as recruitment arrangements, induction procedures and communication systems; and
  • qualifications and training – including the qualifications required for specific posts and training measures.

 

There are also specific consultation rights for the works council covering:

  • night working;
  • equal opportunities (where there should be an annual report on the situation, with proposals for improvement);
  • the gender pay gap (where the employer must provide a detailed report on the situation and a plan of action every two years);
  • policies on drugs and alcohol; and
  • the employment of temporary workers (where the works council must be consulted both on the company’s general use of agency workers and specifically when contracts are renewed).

 

The works council also has specific information and consultation rights in the areas of new technology, surveillance (both electronic and physical) and data protection. Three months before the introduction of new technology likely to have a significant impact on employment or working conditions, the employer must inform the works council in writing of the nature of the technology, the reasons for its introduction, its likely impact and the timing of its implementation. There must then be a consultation, which may also involve the trade union delegation and the health and safety committee, over the measures that need to be taken, including retraining measures, where necessary. Information and consultation with the works council is also required where surveillance cameras are introduced, and their use needs to be proportionate and is only permitted in certain limited circumstances. The same procedures apply, where workers, in order to prevent theft, are searched or monitored in some other way, when leaving work. Finally, the employer must inform and consult the works council on how private communications and data will be monitored on company networks. In each of these four cases, the procedures for informing and consulting the works council were established through legally binding collective agreements.

 

The works council must be informed and consulted about important structural modifications to the company, such as mergers, closures or business transfers, and there are specific requirements in relation to collective redundancies. Here the works council must be given a written report setting out:

  • the reasons for the redundancy;
  • the criteria to be used to choose those to be made redundant;
  • the number and type of employees to be made redundant;
  • the overall number and type of workers normally employed;
  • the period over which redundancies are planned; and
  • as well as the method used to calculate the compensation planned, over and above that foreseen by the law.

 

The aim of this report is to allow an exchange of views, with the aim of avoiding redundancies or reducing their number, or developing social measures to lessen their impact. There are also specific requirements to inform and consult the works council where the company is closed, has been transferred to the judicial authorities (in other words – it is in administration) or is bankrupt.  

 

The main areas where the works council, which is a joint-employer/employee body, has decision-making powers are limited to specific personnel and working conditions issues. They include:

  • fixing the dates of the annual holidays – these should take account both of the wishes of the employees and the needs of the company;
  • setting the dates for individual days off (10 a year), if these have not been set in the appropriate collective agreement;
  • introducing or changing works/company regulations;
  • determining the arrangements for additional company pensions (although the decision to introduce them is one for the employer alone);
  • setting the arrangements for paid time off for training;
  • deciding on the circumstances under which private sector employees can make use of their right to reduce their working time by a half or four-fifths;
  • approving the arrangements for the outplacement of workers who have been made redundant;
  • setting the general criteria for redundancy and re-hiring; and
  • the managementmanaging social benefits, including pension funds, as well as canteens and sports clubs.

 

As already noted, the works council also decides on the choice of the auditor.

In addition to these powers, the works council has a general power to monitor that the relevant social and employment legislation is being applied appropriately within the company.

 

The central role of the trade union delegation, on the other hand, is to negotiate new agreements and ensure that existing ones are kept to. The trade union delegation also deals with disputes between the employer and the workforce, both on an individual and collective basis.

 

It also has a right to inform the workforce about employment and trade union issues. These rights include distributing leaflets, holding meetings and being involved in the induction of new employees.

 

In addition, in workplaces with less than 50 employees, where there is no legal requirement for a health and safety committee, its function and those of the works council are taken on by the trade union delegation.

 

Overall, in terms of the different roles of the two bodies, the trade union delegation is the body which makes the demands and negotiates; the works council is the body which receives information and is consulted.

 

Election and term of office

 

Employee members of the works council are elected every four years by all employees at the workplace, with the same groups being able to vote as in the calculation of the threshold (see Numbers and structures above). In the seats for manual and non-manual workers and young workers (by far the biggest groups), only the three “representative” union confederations (CSC/ACV, FGTB/ABVV and CGSLB/ACLVB) can nominate candidates. In the seats for senior managers, candidates can also be nominated by the managers’ union CNC/NCK and by individual groups of managers within the companies, provided they represent at least 10% of the total. This is not the case for health and safety committees, where only the three representative confederations can nominate. The result is that all health and safety committee members and almost all works council members (98.5% in 2016[2]) are also members of the three confederations. The elections, which are conducted in line with detailed regulations, are seen as a key test of each confederation’s support.

 

Candidates must be employees or apprentices of the company (agency workers are not eligible) and must have at least six months’ service. They must be at least 18 years old (16 for those standing for the young workers’ seats) and they cannot be older than 65 (25 for young workers’ seats). Certain individuals cannot stand as candidates for either the works council or the health and safety committee. These are those in the two highest levels of the management of the company, health and safety advisers (conseiller en prevention/ preventieadviseur, and the so-called person of confidence (Personne de confiance bien-être psychosocial / Vertrouwenspersoon), whose role is to give support to fellow employees.

 

Trade unions are recommended to draw up their lists of candidates for the works council in a way that reflects the proportion of men and women in the workforce. In the 2016 elections, 37.1% of the elected works council members were women; in health and safety committees the figure was 39.4%.[3] Unions are also encouraged to present candidates who reflect the nationality of the workers in the workplace. However, there are no figures on how far this has been achieved.

 

The members of the trade union delegation can be either elected by the trade union members in the workplace or chosen by the local union organisation, depending on the collective agreement covering the sector. In most cases they are appointed by the trade union organisation. The term of office for the trade union delegation is also four years.

 

Protection against dismissal

 

 Members of the works council can only be dismissed for “serious fault” – defined as a situation which makes any further professional relationship immediately impossible – or for specific economic or technical reasons, and in both cases the employer must go through a detailed procedure before the member can be dismissed.

 

Where the employer alleges that the works council member is guilty of “serious fault”, he or she must inform the individual, the nominating union and the labour court, explaining why a further professional relationship is impossible. The two sides then appear before the court and this is followed by an attempt to reach agreement through conciliation. If this fails, there is a further appearance before the court, which begins with a last attempt at conciliation, before the court reaches a decision on whether the dismissal is justified. There is also the possibility of an appeal.

 

In the case of a dismissal on economic or technical grounds, the only acceptable reasons are the closure of the entire company, the closure of a specific division or workplace, such as a workshop or a shop, or the dismissal of a whole category of employees, such as all the maintenance staff. In every case the employer must justify his or her reasons to the joint union/employer committee for the industry in which the company operates. The joint committee must reach its decision unanimously, although the employer can appeal to the labour court.

 

The protection applies to members of the works council and the health and safety committee, as well as members of the trade union delegation if it is exercising the powers of the health and safety committee because this committee does not exist. The protection also applies to replacement members, elected to take over from a full member unable to fulfil their responsibilities, and to candidates for these positions.

 

Before dismissing a member of the trade union delegation, the employer must normally inform both the delegation as a whole and the trade union involved, and there is the possibility of conciliation through a joint union-employer body. However, the exact position depends on the collective agreement for the sector.

 

Time off and other resources

 

The employer is required to provide adequate time and facilities for the works council to function effectively. Meetings of the works council are counted as work time and paid accordingly. The law also specifies that, at the start of each four year period and then once a year, the works council has the right to meet for at least eight hours, normally over several meetings, to discuss the basic and annual information on the business.

 

The amount of time off provided to the trade union delegation will depend on the size of the workforce. In a company with between 300 and 500 employees, it would be usual for three people to have full-time release from their normal duties.

 

In many larger companies, each trade union has its own office, provided by the company, with a telephone and computer.

 

The works council can make use of experts who are paid by the company either to obtain additional information or to explain the information already received. This is in addition to the auditor.

 

Training rights

 

Members of the works council and the trade union delegation also have the right to undertake paid training, provided by the unions, during working time. This training is intended to improve the skills and knowledge of the representatives in economic and social areas. The details of how much, and under what circumstances, are fixed by the collective agreement for the appropriate industrial sector. Typically it will be six to eight days a year. The training is paid for by the union but the time off is paid for by the company.

 

Representation at group level

 

There is no specific group level representation in the Belgian system. But works councils at different workplaces in the same company can have joint meetings, which are chaired by the head of the whole company.

[1] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[2] Résultats définitifs élections sociales 2016,   Service public fédéral Emploi, Travail et Concertation sociale, Tables CE and CPPT, B6 and D1 http://www.emploi.belgique.be/defaultTab.aspx?id=45485  (Accessed 27.09.18)

[3] Ibid

L. Fulton (2020) National Industrial Relations, an update. Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.