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A 1997 Act establishing the equality of women and men with respect to night work came into force in Belgium in April 1998. Trade unions do not approve of this law on the grounds that it removes the power of decision over permitting night work from sectoral joint committees, and abolishes the voluntary nature of night work. However, in the name of promoting equal opportunities, a further step has now been taken towards "normalising" a practice that had been meant to remain exceptional under Belgian law.
On 7 April 1998, the Act of 17 February 1997 establishing the equality of women and men with respect to night work came into force. Its implementation has put an end to a debate on the introduction of night work in companies, over which employers' and workers' representatives had opposed each other for eight years.
Old rules condemned
Night work was banned for all workers following a 1964 Act fixing the working day between 06.00 and 20.00, and was authorised only under a system of exemptions based on types of work or functions. However, permitted exemptions were applied more or less broadly according to category of worker: they were limited with respect to young workers under 18 and women but applied more extensively for adult men. The special protection given to women and young people dated from 1889. It was reinforced under the terms of International Labour Organisation (ILO) Convention No. 89 banning women from night work in industry, which Belgium signed in 1952.
From the beginning of the 1980s, despite the broadening of exemptions and the introduction of flexibility, the special protection scheme for women was maintained, putting Belgium in breach of European Community Directives on equal treatment. That is why Belgium was instructed by the European Court of Justice to denounce ILO Convention No. 89 and to adopt legislation that complied with the 1976 equal treatment Directive. In 1992, Belgium denounced ILO Convention No. 89 at the same time as France, Portugal, Greece and Italy.
New rules
In accordance with tradition in social legislation, the Belgian Government then asked the National Labour Council (Conseil National du Travail/National Arbeidsraad, CNT/NAR) for its opinion on regulations that would comply with the legal ban on women's night work and, at the same time, introduce equality of women and men with respect to exemptions.
Collective Agreement No. 46, signed in 1990, was the framework for the Act of 17 February 1997 which came into force in April 1998, though monitoring procedures and certain restrictions have been relaxed. However, the requirement for a collective agreement with the unions to allow an exemption from the night work ban has been maintained. This distinguishes the Belgian system from the ILO rules, which require only consultations. Only small and medium-sized enterprises (SME s) without union representation will be able to change their night work arrangements simply by changing their work rules. Overall, the law maintains the principle of a general ban on night work, with a system of protection for young workers only.
The trade unions oppose this law. The two major points of disagreement are:
- the removal of the power of decision over night work from the sectoral joint committee s. The extension of exemptions - ie the authorisation for a company to organise night work - is now conditional on a process of collective bargaining within the company, and on the agreement of all the representative unions present. The employer will have to consult in advance the works council or, failing that, the union delegation, and the sectoral joint committee will just be informed of those consultations. For the trade unions, that represents a step backwards. The relevant national collective labour agreement (No. 46) had provided that exemptions should be given only on a case-by-case basis, by royal decree and with the authorisation of the appropriate joint committee, which meant stricter control of company practice; and
- the abolition of the principle that night work should be voluntary, and its replacement by a trial period for night workers. The trade unions would have liked to incorporate the principle of free choice provided for in agreement No. 46 into law in order to preserve the exceptional nature of night work, but it was the employers' position that finally prevailed. They wanted night work to be considered as "acceptable employment" for purposes of the rules on unemployment. In other words, if night work offered to an unemployed person were refused, then the refusal would be penalised. However, provision has been made for a three-month trial period and a three-month period of job security in the event of a return to day work.
For the rest, the following general rules apply:
- only workers with open-ended contracts may be called on for night work (along with temporary workers especially recruited for night shifts);
- in line with the ILO Convention, night work gives entitlement to financial compensation; and
- equal pay is guaranteed for all workers.
In her presentation of the law, the Minister for Employment and Labour stressed the aspects concerning equal treatment and equal opportunities between women and men: women would have access to better paid jobs and shiftwork. For a representative from the Confederation of Christian Trade Unions (Confédération des Syndicats Chrétiens/Algemeen Christelijk Vakverbond, CSC/ACV), that argument was not supported by experience: "women will do exactly the same thankless jobs as they do during the day." Employers, on the other hand, see no major change; there has always been consultation over the introduction of night work.
Commentary
The new law supplements the rules on working time that have been developed over the last 20 years, without changing the basic principles of labour law or the normal procedures for collective negotiations.
The arguments used to justify keeping women out of night work have ranged from a traditionalist defence of the family to the protection of male strongholds of the best paid jobs. Today, however, the argument covers another field - that of the need for flexibility as determined by the firm and assessed only by those directly involved. The justification on grounds of equality between women and men, supported by the unions, leads in their view to the "normalisation" of all possible forms of work and might jeopardise the compensation normally given for inconvenient hours and arduous jobs. (Philippe Dryon and Estelle Krzeslo, Point d'Appui Travail Emploi Formation - ULB)
References
"Le temps de travail, transformations du droit et des relations collectives de travail", M Jamoulle, E Geerkens, G Foxhal, F Kefer and S Bredael, Editions du CRISP (1997).
"Ploegen- en nachtarbeid in zijn Belgische context: regelgeving via wetgeving en CAO, houding van de sociale partners", Jo Walgrave, in Extérieur nuit, Dossier TEF n°7 (1992).