Strike at Carnoy highlights threat to status of protected employees
In September 1999, striking workers at the Belgian metal pipe manufacturer Carnoy called off their action after seven weeks, though with relatively little enthusiasm: only 58% voted in favour of a compromise proposed by an independent negotiator. The company's management took a tough stand in this conflict by instigating unilateral legal proceedings to have the strike declared illegal and bringing in a helicopter to fly non-striking employees into work. The trade unions' main claim was that the principle of employment protection for shop stewards and the right to strike were being violated.
In early August 1999, a shop steward for the Belgian General Federation of Labour (Fédération Générale du Travail de Belgique/Algemeen Belgisch Vakverbond, FGTB/ABVV) was made redundant by Carnoy, a manufacturer of metal pipes based in Wondelgem near Ghent, for "pressing reasons". Workers promptly launched strike action, with official recognition by the three trade unions represented at the company. The administrative staff did not participate in the strike, and were prevented from accessing the site by flying pickets.
According to the management, the shop steward in question deserved to be dismissed because he "had taken too many holidays". According to the unions, this constitutes a weak basis for using the procedure of "dismissal for pressing reasons", particularly relating to a shop steward, who is a statutorily protected employee. The law states that shop stewards can be dismissed only for reasons unrelated to the performance of their mandate. Failure to comply with the specific legal procedure established for the purpose renders the dismissal null and void. Because the company omitted the procedure, the trade unions demanded the reinstatement of the sacked shop steward, but this was refused. The conflict consequently escalated into a dispute of principles.
Both sides were intransigent, not only because of the facts of matter - legal errors in the procedure surrounding the dismissal of a protected employee (ie a shop steward) for "pressing reasons" on an allegedly trivial pretext - but also because of the background: embittered industrial relations in a company recently taken over by the Dutch-owned KOOP, concern, whose management, unions allege, want to erode Carnoy's strong trade union tradition. Furthermore, the trade unions assume that a harsh economic reorganisation of the company is on the cards, since a number of employees have suddenly been made redundant, giving the unions further reason to try to retain their accumulated power.
Two legal blunders
When the dismissal of the shop steward for "pressing reasons" took place, Carnoy management is reported to have made a legal error regarding the length of notice and terms of appeal for the employee involved. The employee in question was a member of the health and safety committee, as well as am acting delegate to the works council and a shop steward. Shop stewards enjoy statutorily protected employment, to ensure that they cannot be dismissed for their trade union activities. When an employer wishes nevertheless to dismiss a statutorily protected employee for "pressing reasons", it is required to notify the organisation that nominated the employee by recorded delivery within a given period. Furthermore, the employer should refer the case to the chair of the industrial tribunal within the same period of time. The pressing reasons should not be in any way connected to the employee's performance of activities related to the union mandate. These terms and regulations are laid down under penalty of the dismissal being declared null and void. However, in this case the employer apparently ignored the procedures and also refused to reinstate the employee.
The Carnoy dispute was a tough one. The trade union alliance managed to seal off the company building, thus preventing access by administrative staff trying to work. Unperturbed, the employer hired a helicopter to bring in those willing to work. This provoked such an angry reaction from the flying pickets that the enlisted helicopter agency refused to cooperate after two flights. The atmosphere deteriorated even further when a bailiff was sent in, accompanied by police, to serve a unilateral summons from the justices' chief executive of the magistrates' court (instead of the industrial tribunal) for damages to the tune of BEF 200,000 per employee who obstructed the flow of traffic to and from the company building. The workers immediately appealed, because their case had not been heard in this unilateral summons procedure. The judge then annulled the summons and rejected the employer's demands after it was determined that the "absolute need" (of access) claimed by the company did not correspond with reality. For the trade unions, this victory was important, particularly because it meant that a civil court upheld the right to use pickets in this case.
Error nearly threatens referendum
The conflict did not die down after the joint committee for the metalworking sector issued advice on dismissals for pressing reasons, because the company still refused to take the employee/shop steward concerned back into employment. A social negotiator appointed by the Minister for Employment consequently drafted a compromise, which turned out to be rather feeble, in the unions' view. It stipulated that the sacked shop steward should not be reinstated, and that the employees should agree to participate in negotiations on the company's reorganisation. The negotiations should include pay decreases and job losses. At this point, it was not clear whether there would be any outright redundancies. In order to restore the social peace, the existing collective agreement should be extended until the end of the year. No reprisals should be taken against workers who participated in the strike (although the management had reportedly already prepared similar measures before the compromise was drafted).
The employees were supposed to vote on the proposal via a postal ballot. However, a mistake in procedure was made - the proposal and ballot papers were not sent out by registered mail, and a number of employees did not receive their proposal and voting form, hence requiring the procedure to be repeated.
On Friday 17 September, the results of the referendum were announced. In accordance with trade union rules, a majority of two-thirds against the proposal was required to continue the strike. Some 58% voted in favour of the agreement; a majority which was large enough to prevent the strike from continuing, but did not constitute resounding support for the proposal. The tensions at Carnoy are set to continue. In fact, on Monday 20 September, a large number of workers refused to return to work.
This conflict has created yet another dangerous precedent through non-compliance with compulsory regulations regarding the dismissal of trade union delegates. The difficulty lies with the inability to force employers to reinstate employees, even when the industrial tribunal has ruled against the employer. Contractual freedom reigns supreme. The status of protected employment enjoyed by trade union delegates consequently seems of little practical merit.
The intervention by civil courts in collective industrial conflicts (when industrial tribunals are powerless) has also traditionally been resented by trade unions. The procedure of a unilateral summons is particularly notorious: in emergencies, the employer can ask the justices' chief executive of the magistrates' court for urgent measures as long as it can demonstrate that its interests are being harmed. In view of the urgency involved, the case of the defendant is not heard, and measures are implemented regardless of any appeal by the unions. The employers often demand payment of damages, crippling strike action as a result.
On account of the civil judge withdrawing the two summonses after the unions launched their appeal, the right to use pickets was upheld on this occasion. (Ph De Baets, Steunpunt WAV)