New law gives redundancy protection to employee representatives

In a new decree, the Court of Arbitration in Belgium has ruled that employee representatives will retain their redundancy protection if they resign from office. This reinforcement of redundancy protection for employee representatives comes at a time when some notable legal cases against participants in strike action are pending.

Redundancy protection for employee representatives

In Belgian companies, members of the works council and the committee for risk prevention and health protection at work (BE0309304T) can in theory only be dismissed on urgent grounds which have previously been accepted by the labour court, or for economic or technical reasons which have previously been acknowledged by the competent joint sector committee, according to the Employee Representative Redundancy Regulation Act (BE0012333N). If unlawfully dismissed, they can request reintegration into the company and they are entitled to substantial compensation of two, three or four years’ wages depending on seniority.

In a number of cases, the legislation envisages the scenario of an employee representative leaving this position. The question arose as to what would happen to that worker’s redundancy protection in the event of their terminating their representative post. In the wake of a case pending at the labour court of Liège in the eastern Walloon region, an interlocutory question was asked about this issue at the Court of Arbitration (Cour d’arbitrage de Belgique/Arbitragehof van België).

Implications of decree

In Decree 167/2006 (in French, 45Kb PDF) of 9 November 2006, the Court of Arbitration has ruled that a representative cannot lose this redundancy protection when he or she resigns from office. The judgement is mainly justified by stating that such protection is not associated with the office in itself, but with the fact that a person puts him or herself forward for the social elections and therefore has expressed the intention to represent the staff. The protection thus comes with running for the position of employee representative. This judgement is also in line with Decree 19/2002 (in French, 116Kb PDF), in which the Court of Arbitration ruled that employee representatives retain their protection even if they are no longer members of the trade union which nominated them.

The new judgement is regarded by certain lawyers as a reinforcement of redundancy protection. However, others highlight that this judgement means that employee representatives will find it difficult to take early retirement. In order to be able to take early retirement, a person must be dismissed by his or her employer. In the past, it was judged that employee representatives could resign from office and that redundancy protection ended as a result. Nothing then stood in the way of dismissal from employment by the employer – and therefore early retirement. However, this possibility is now being questioned.

Court cases arising from strike action

This judgement by the Court of Arbitration comes at a time when, in the aftermath of the strike against the Solidarity pact between the generations (Pacte de solidarité entre les générations) (BE0602304F), a number of legal cases are pending against trade union representatives.

In the spring of 2006, two militant members of the socialist-inclined Trade Union for Employees, Technicians and Managerial Staff (Bond der Bedienden, Technici en Kaders/Syndicat des Employés, Techniciens et Cadres, BBTK/SETCa) were convicted and sentenced to a six-month suspended prison term with one month effective. Both militants had allegedly caused damage in an Antwerp supermarket during a strike on 8 December 2005. The judge ruled the offences as ‘mindless violence’ and the punishment as ‘a fitting signal’ to curb ‘violent strike action’. Although the regional manager of the supermarket chain involved – following consultation with the trade union – had withdrawn the complaint on 13 March 2006, the prosecutor nonetheless pursued the case and both militants were convicted through a rapid legal procedure, issuing a verdict on 26 April 2006. An appeal against the decision has been pending since the end of October 2006.

Another recent case is that against a further militant member of BBTK/SETCa in connection with a picket at a painting company, dating from April 2006. During a demonstration against the intervention of the court in the strike dispute, involving fines, the business manager drove at the protesters. Subsequently, the business manager had to answer to the court. Some protesters were then subpoenaed by this business manager for assault and battery during hand-to-hand fighting, which allegedly occurred after the action by the employer. The trade union militant has to answer for this attack to the court and also for two incidents which occurred during the above actions against the Generation Pact.

Commentary

This series of lawsuits indicates that, on the one hand, Belgian legislation has recently tightened up on infringements of the protection of employee representatives. On the other hand, the rules governing public order are increasingly being applied to events during industrial action.

Guy Van Gyes, Higher Institute for Labour Studies (HIVA), Catholic University of Leuven