Social partners and magistrates oppose reform of labour courts

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Belgian labour courts are unusual in their composition: as well as stipendiary or professional magistrates there are also "social judges" appointed by trade unions and organisations representing employers and the self-employed. Over 1998 and 1999, both social partners and magistrates have opposed the integration of the labour courts into the normal judiciary, as proposed by the government in May 1998.

The present labour court system in Belgium dates from 1970. Since then, all employment-related cases have been heard under the competence of a specific judicial body, the Labour Tribunal (Tribunal du Travail/Arbeidsrechtbank) for first-instance jurisdiction and the Labour Court (Cour du Travail/Arbeidshof) for appeals.

Distinctive points of the system

The composition of these labour courts is unusual since stipendiary or professional magistrates sit alongside non-professionals - the "social judges" (juges sociaux) - who are appointed as representatives of employers, blue-collar workers, white-collar workers or the self-employed. They are all nominated by organisations representing these categories. Each court comprises one professional judge and two social judges, with each having one vote in the verdict. It is therefore not unusual to see the professional judge in the minority against "the "social judges. However, the role of social judges in the preparation of judgments is not restricted to voting. Their practical experience of labour relations and their knowledge of the background and situation of workers - or of those of certain categories of worker - are regarded as giving their professional colleagues essential and up-to-date insights into the realities of working life. This is seen as a vital contribution, as in most cases the court has to rule on the facts or assess what, in a given context, may be considered as normal, wrong, equitable or excessive.

Social judges therefore give labour tribunals and courts an opening on to the practical world of work, and all the social partners have declared support for the presence of social judges on the Labour Tribunals. Thus according to the Confederation of Christian Trade Unions (Confédération des Syndicats chrétiens/Algemeen Christelijk Vakverbond, CSC/ACV) "the social partners have unanimously rejected [the proposal which expressed] doubts regarding the independence of judges appointed for specific periods, on the proposal of the social partners" (in the May 1998 words of a working group of CSC-ACV's national bureau).

The Belgian system has another original characteristic, namely a public prosecutor's office specialising in the competence of the Labour Tribunal, known as the Labour Auditor (Auditeur du Travail/Arbeidsauditoraat). The Labour Auditor has a crucial function in employment cases, having both a civil and a criminal role.

With respect to civil action, the Labour Auditor conducts the pre-hearing investigation and completes the case that will be submitted to the Labour Tribunal. This preparatory work covers the most sensitive matters, particularly where the fundamental rights of social security claimants are in question with respect to the payment of benefits (such as unemployment benefits, sickness and invalidity insurance, pensions, disability allowances and social welfare). Appeals filed by claimants are very often imprecise and incomplete. The Labour Auditor has the right to act generally on behalf of the claimant in investigating the case and sometimes in remedying the shortcomings of the parties. This active role helps to establish a balance between the parties to the hearing, namely the claimant on the one hand and the administration on the other. At the hearing itself, the Labour Auditor gives a substantiated opinion on each case presented to the Labour Tribunal.

The Labour Auditor also has a function in criminal cases, in proceeding against violations of labour law in the criminal courts. This covers a wide spectrum of cases: from clandestine work to trafficking in human beings, through to the non-payment of wages, the use of unauthorised foreign labour, organised fraud and so on. The Labour Auditor procedure enables workers to take civil proceedings in a criminal court and to have their rights respected without having to bear the cost of a legal action, which is always expensive.

As well as the joint professional/social composition of the Labour Tribunal and the presence of a specialised prosecutor, the 1970 legislation also introduced a new procedure that was flexible, simple and free. In all cases between a social security claimant and the administration, the case is submitted to the labour tribunal by means of a simple petition at the clerk of the court's office. In addition, the law allows the claimant to be assisted or represented not only by a lawyer but also by a representative from a voluntary organisation or trade union.

The 1998 reform

In the wake of the judicial scandals that have rocked Belgium, the government decided to launch a thorough overhaul of the country's judicial institutions in 1998, and the year will be remembered as one of reform in this area. However, the public in general have not commented very much on one of the changes decided on 26 May 1998 - the planned merger of the Labour Auditor and the Crown Attorney's Office (Parquet du Procureur du Roi/Parket van de procureur des Konings). As well as this change, another proposal envisaged the merger within a single district tribunal of all the first-instance courts. The tribunal would consist of 15 sections, each one covering specific types of proceedings, and with one dedicated to "labour proceedings"

This reform of labour tribunals met a cold reception from the social partners, which strongly opposed it. For instance, the Higher Council for the Self-Employed (Conseil Supérieur des Classes Moyennes/"Hoge Raad voor de Middenstand") expressed the hope (in a 1998 opinion) that "the technical expertise that magistrates had acquired over the years would not be challenged."

Criticisms were partly acted upon. The government has now decided to give further thought to the question of the district tribunal and to seek further consultations, in particular with the social partners.

Restricted competence of Labour Auditor

So far, only changes to the role of the Labour Auditor have been decided, through the law of 22 December 1998, published in the Moniteur Belge on 10 February 1999. However, according to magistrates and social judges, these changes might undermine the current foundations of social justice. Dissolution of the Labour Auditor's civil competence and its incorporation into the prosecutor's office may be anticipated. This integration has been justified mainly by the need for help the prosecutor's office to deal with its work overload. That might lead to the abandonment of the prosecutor's civil function in the Labour Tribunal. Social security claimants could, it is claimed, lose the guarantee of social justice as it exists today - the right to a hearing, without delay, in an atmosphere sensitive to social matters. In spite of these criticisms, the reform has been decided, though some guarantees have been given.

Commentary

The social partners and labour court magistrates have stressed their support for the present structure of labour tribunals, and have demanded wider competence for them and improved procedures. For the third millennium they want humane, rapid and free social justice. They think that this reform is at least paradoxical at a time when great emphasis is placed on the rights of citizens, claimants and victims, since their social rights may be threatened. They do not understand the need for this reform as no fundamental criticism has yet been levelled at the functioning of Labour Auditors and Labour Tribunals. (Jean-Paul Janssens, Magistrate, Labour Auditor's Office in Nivelles)

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