Interventions of justice in labour disputes: Techspace Aero case

There is a growing trend among employers in Belgium to resort to the courts to resolve employment disputes, outside the labour courts or the usual bargaining and conciliation procedures. Trade unions and commentators regularly express concern at what is perceived as a trend towards the ‘judicialisation’ of disputes and some commentators see it as a challenge to the Belgian concertation model and the right to strike. The recent case of a dispute at Techspace Aero illustrates this.

The case of Techspace Aero

Techspace Aero is a company based in Herstal (Wallonia), manufacturing components for aeronautical engines. For 18 days, from 12 March until 30 March 2010, all the company’s blue-collar workers were on strike. They were protesting against a management decision to end the existing early retirement scheme at the age of 58 years. As indicated by the Belgian General Federation of Metal (FGTB-Métal/ABVV-Metaal) and the Confederation of Christian Trade Unions – Metal (ACV-CSC Metea), the company’s workforce is ageing, with a mean age of 49–50 years, and the recent excellent profits of Techspace Aero more than justify the preservation of the scheme.

More than 10 days after the strike started, the conflict was paralysing the company. Both parties’ positions became more polarised and the negotiations broke down. Trade unions began to set up picket lines while the management applied to the civil court to obtain a judge’s order authorising them to break through the lines. A bailiff was sent in at night. He ordered the workers to break their line and allow a truck to make a delivery. Strikers were also informed that any worker who tried to enter would incur a €2,500 penalty and would be restrained by force. The following morning, the bailiff returned to ensure executives were able to enter the company premises, drawing strong protests from the workers.

In an attempt to break the impasse, the Walloon Minister of Finance, André Antoine, asked the management of Techspace Aero to make some concessions in order to facilitate negotiations. The management agreed and asked those workers who were not striking not to come to work one Friday morning. Negotiations were restarted and on the following Monday, during a general assembly, the workers finally approved an agreement and returned to work.

Traditional conflict resolution approaches

Social dialogue and the collective bargaining system constitute the heart of the traditional Belgian labour arbitration process. The procedures are very formal and based on the relationship between employers and trade unions, with as little involvement from outsiders as possible.

Where resolving employment conflicts is concerned, a distinction has been made over time between collective and individual disputes: the latter are the responsibility of the labour courts, while the former are usually referred to joint commissions and conciliation bodies in charge of mediation between employers and trade unions.

The system of collective labour regulation in the private sector consists of different bodies inside and outside companies in charge of preventing and resolving collective disputes.

• Within companies, works councils and special Committees for Prevention and Protection at the Workplace (CPPT/CPBW), play an important role in the prevention and resolution of conflicts. Members have the right to make decisions on the elaboration, at company level, of employment regulations. Works councils and CPPT/CPBW are compulsory in companies with more than 100 and 50 workers respectively.

• Outside companies, at sectoral level, are joint committees. Under the law of 5 December 1968 on collective agreements and joint committees, their mission is to prevent or mediate litigations between employers and workers. To this end, the law provides for the creation of a conciliation sub-committee composed of workers and employer representatives. When conciliation fails and a dispute cannot be resolved, notice of a strike or lockout can be given.

• ‘Social conciliators’ from the Federal Public Service (FPS) Labour, Employment and Social Dialogue can also intervene to mediate disputes at company level.

In spite of the very formal procedures in conflict resolution and prevention, industrial action – such as strikes and lockouts – is not subject to any regulation. The exception is when a collective agreement contains compulsory or contractual clauses, for example obliging workers to give notice of a strike a few days before any collective action starts.

During the 1970s, many collective disputes occurred and a ‘jurisprudence’ in case of picket lines and lockouts emerged. While labour court judges protected themselves – arguing that no jurisdiction allowed them to mediate collective conflicts between employers and trade unions – some employers turned to other sources of law, such as the right to protection of private property, the right to maintain economic activity and even the right to work for the non-strikers. Most of the time, court verdicts ordered workers to lift picket lines or end occupations, with the threat of financial penalties if they did not.

Legal intervention in resolving collective labour conflicts

Over the years, the number of cases of judicial interference in collective labour disputes has increased. This type of legal intervention is rather one-sided, since workers and trade unions are not party to the tribunal. Consequently, workers cannot defend themselves since a judge will listen only to the employer’s point of view. Obviously, trade unions can lodge an appeal in order to present their point of view, but the final decision can take several weeks. In the meantime, as Bernard noted in a paper (in French, 68Kb MS Word doc) presented at the 17th Congress of the International Association of Democratic Lawyers in 2009, ‘the damage caused to collective action cannot be repaired_’_.

In practice, the modus operandi is more or less the same as it has been at Techspace Aero: when the picket lines are set up, a bailiff is sent, provided with an order of the president of the Court of First Instance and accompanied by police officers. The bailiff informs the strikers about the legal judgment and orders them to lift the picket line. If they refuse, the bailiff can ask the police to use force and/or ask for the identity card of the offenders.

The procedure often includes a high financial penalty, with the aim of putting pressure on the strikers to obey the judge’s order immediately. Until recently, the financial penalties were usually dropped but, since 2001, on the request of some employers, they have been enforced.

According to trade unions, the unilateral civil procedure embarked on by some employers constitutes a challenge to the Belgian concertation model and its traditional procedures for mediation of collective labour disputes, and even puts a question mark over a worker’s right to strike.

Commentary

The formal recognition of the right to strike is quite recent in Belgium, celebrating its 20th anniversary in 2010. This right was fully established only after the government ratified, with the law of 11 July 1990, the European Social Charter which explicitly recognises the right to strike in Article 6.4.

The European Committee of Social Rights, which assesses how legislation and practice in Member States conform to the European Social Charter, observed that strike regulation in Belgium was ‘confused and uncertain’ before it ratified the charter.

In 2002, the social partners signed a so-called ‘gentlemen’s agreement’, concluded at national cross-industry level, on mutual expectations in the case of labour disputes. In this agreement, trade unions and employer representatives commit themselves to respect the following procedure:

• start with social concertation at company level;

• if this does not work it is to be followed by conciliation in a joint committee;

• if the conclusion results in a statement of insolvency, notice of strike action has to be registered;

• when the deadline for strike action passes without agreement or further negotiation, peaceful strike action can begin.

This agreement meant employers had committed themselves to refrain from making unilateral application to the civil courts to prevent collective actions. However, recent cases such as Carrefour in 2008 and the dispute at Techspace Aero described here suggest this agreement is not always sufficient to guarantee peaceful resolution of labour conflicts.

Marie Van den Broek, Institute for Labour Studies, Catholic University of Louvain (UCL)