THE ORGANIZATIONS OF SETTLEMENT OF LABOUR DISPUTES IN EUROPE

Introduction by the President of the Greek Mediation
and Arbitration Organisation 1

Costas Papadimitriou

Comparative Report 3

The peaceful settlement of transnational
collective labour disputes

Jean-Michel Servais

Belgium 19

Direction Générale, Relations collectives de travail

Guy Van Gyes

BULGARIA 45

National Institute for Conciliation and Arbitration (NICA)

Vladimir Boyadjiev

Greece 57

Organisation for Mediation and Arbitration (OMED)

Costas Papadimitriou

IRELAND 81

Workplace Relations Commission (WRC)

Sylda Langford

PORTUGAL 95

Directorate-General for Employment
and Industrial Relations (DGERT)

Alexandra Silva

Serbia 109

Republic Agency for Peaceful Settlement
of Labor Disputes (RAMRRS)

Ivica Lazović

SPAIN 131

Interconfederal Mediation and Arbitration Service
(SIMA-FSP)

Eva Ruiz Colomé

Sweden 147

National Mediation Office (Medlingsinstitutet)

Irene Wennemo

Ukraine 163

National Mediation and Conciliation Service

Dmytro Kukhniuk / Svitlana Zapara

United Kingdom 171

Advisory, Conciliation, and Arbitration Service (ACAS)

Marina Glasgow

Comparative Report

The peaceful settlement of transnational collective labour disputes

Jean-Michel Servais

President of the International Society for Labour Law and Social Security Former Director of the International Labour Office (ILO) Guest Professor at the Gerona University

A number of industrial disputes now takes on a European, or more broadly international, dimension. However, although the parties involved generally want an amicable solution, the laws in force, whether national or European, offer settlement methods that, where they exist, are subject to debate. Consequently, the question arises of whether we can draw inspiration from international labour law in deciding how to settle such disputes amicably. That is the purpose of this report.

In addition, major supranational firms may undertake to respect minimum labour standards in collective agreements they sign with trade unions federations or NGOs or in contracts of a private nature they conclude with their customers or with suppliers, subcontractors, licensees and other business partners. More often they integrate their commitment unilaterally within codes of conduct or other social initiatives that apply to the company’s own operations at various levels (establishment, firm or group).

The framework agreements concluded between transnational companies and international trade union federations normally establish follow-up mechanisms in which managers and workers´ delegates meet to oversee their application. Corporate codes of conduct also include generally internal and/or external procedures of supervision. However, the establishment of an efficient monitoring system raises complex issues with regard to the

competence and the independence of the inspectors coming from private institutions, often selected and paid by the corporations themselves, and to the duration and the focus of the audits.

Beyond those mechanisms, the legal obligations of multinational companies are analysed according to the law made applicable in accordance with domestic or European private international law or equivalent provisions on social security. The rules identified may recognize the binding force of unilateral undertakings either directly (as in legislation deriving from the Napoleonic civil code), or through implicit clauses in the employment contract or in company work rules. Elsewhere false public statements may be considered as an unfair practice leading to civil liability. Everywhere however, the legal value of such texts remains difficult to establish.

The first section aims to better define transnational industrial disputes by distinguishing between several different types of situation. It finds that while international – primarily European – provisions do offer solutions to transnational conflicts of rights, these solutions are not always satisfactory, indeed, far from it. However, with a few exceptions, international and European law do not generally provide for settling transnational conflicts of interest on their merits, while national laws differ significantly with regard to the procedures for resolving strikes and other forms of collective action.

The second section goes on to examine the international instruments and their implementation procedures that could offer ways of creating amicable methods for resolving such disputes.

1. Transnational labour disputes: characterization and regulation

A labour dispute arises from an individual or collective grievance relating to working conditions or a company policy. Recommendation 130 on the examination of grievances, which was adopted by the International Labour Organization (ILO) in 1967, stipulates that any worker, acting individually or jointly with others, should have the right to submit a grievance without suffering any prejudice whatsoever as a result and to have that grievance examined pursuant to an appropriate procedure.

We still need to determine when a dispute takes on a sufficiently transnational dimension as to require specific treatment. Few authors have addressed this issue. In my view, three situations can be identified.

Three hypotheses of increasing complexity can be distinguished. A dispute that arises within a country (such as a strike by transport workers), but affects citizens of other countries (by disrupting the supply of goods) can normally not be said to be transnational, from a labour law point of view. When, on the contrary, a conflict includes a foreign element, such as the nationality of a group of workers, but the activities of those involved are carried out in a single country, the domestic law specifies the applicable rules and regulations and the competent jurisdiction. The situation becomes more complex when the activities to which the dispute relates are carried out in more than one country.

Furthermore collective conflicts appear more difficult to solve than individual ones. Of some use may also be the distinction between conflicts of rights (i.e. about existing provisions) and conflicts of interests (aiming to modify terms and conditions of employment) referred to in the ILO Examination of Grievances Recommendation, 1967 (No 130). The distinction corresponds mainly to a conception of the judicial system that restricts the jurisdiction of the courts to applying the law. Many countries have nevertheless introduced it with the help of the ILO because it is easy to handle.

In the case of a conflict of rights, the provisions of an international treaty or of European law apply, where appropriate. This is the case of the ILO Maintenance of Social Security Rights Convention, 1982 (No 157), which as a rule refers to the normal place of work as the touchstone (Article 5). In contrast, the Hague Principles of Choice of Law in International Commercial Contracts excludes contracts of employment. In the same manner, applying European Directive 2008/52 of 21 May 2008 on certain aspects of mediation in civil and commercial matters to labour disputes seems inadequate. Its preamble states in Para 10 that the directive does not apply ‘to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law. Such rights and obligations are particularly frequent in [...] employment law.’.

European Regulation 593/2008 of 17 June 2008, known as ‘Rome I’, determines which law is applicable to contractual obligations, including employment contracts. Leaving its abstruse wording to one side, Article 8 states that, in most cases, employment contracts shall be governed by the law of the country in which the employee habitually carries out his or her work. It leaves room however for the application of more than one national legislation in the same case.

The provision only applies to individual employment contracts. Collective agreements come under the general provisions of the instrument, which cover all acts that give rise to contractual obligations. Article 3 states that the parties must have the freedom to choose the applicable law. In the absence of any such choice, Article 4 requires that the applicable law to be that of the country in which ‘the party required to effect the characteristic performance of the contract has his habitual residence’, that is to say, the place of central administration for companies, employers’ organisations or trade unions (Article 19).

This solution also corresponds to parts of certain directives that cover other areas, such as worker information, consultation and participation. It is only suitable for company or group-wide agreements. With regard to agreements reached between employers’ and workers’ organisations from more than one country or at European level, no overall solution has clearly emerged. The same is true when it comes to applying national collective agreements to international employment relationships. It is by no means easy to determine, as Article 4 stipulates, the law of the country with which the contract is most closely connected.

The implementation of other European instruments is still proving complex. Take, for example, Regulation 1215/2012 of 12 December 2012 regarding jurisdiction and the recognition and enforcement of judgments in civil and commercial matters or Regulation 662/2009 of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations.

The brief mention of European standards that can be applied to conflicts of rights clearly shows that the solution may be problematic, as when the rules lead to several possibly applicable laws. Moreover, it does not always move in the direction of reconciliation.

There are no similar provisions for conflicts of interest as for collective employment relations that do not result in a collective agreement. Those disputes are not entirely exempt from regulation; legal standards often impose restrictions upon the form that the dispute can take. Standards set out in national provisions governing private international law and European regulations can nonetheless result in the application of several national laws that are incompatible with one another. Indeed, industrial relations vary significantly from one country to another, even between those with shared borders.

Such differences relate not only to the applicable legal rules, but also to how the system is considered and how those involved view their mission. The rules may relate to strike action (a simple freedom or an individual or collective right) or to collective bargaining and agreements (provisions that apply to all those who work for a particular company or indeed to the entire profession in many countries, but are simply a solemn agreement in, for instance, the United Kingdom). The rules also regard the recognition of trade unions, which is generally granted in continental Europe provided that the trade unions meet certain representativeness criteria, but which may be the result of a bitter struggle in the United States. It will therefore come as no surprise that transnational collective disputes too give rise to highly complex problems.

On this matter, the application of European Regulation 864/2007 of 11 July 2007, known as ‘Rome II’, concerning the law applicable to non-contractual obligations, is not without its own difficulties. According to Article 9, the liability of an employer, worker or professional body for damages caused by a strike or lockout is governed by the law of the country where the action is being (or has been) taken. The provision could lead to the application of a law that is deemed prejudicial to freedom of association within the meaning of the ILO Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87), as the ‘omnipresent’ threat of a claim for damages that could bankrupt a trade union – something that had become ‘possible

in the light of the Viking and Laval judgments’ – is creating a situation in which it could become impossible to exercise the rights enshrined in this international convention.

Circumstances exist however where the rules admit modifications and application of a law immunizing unions from such responsibility. If the party claimed to be liable and the party sustaining damage both have their habitual residence in the same country at the time when the damage occurs, then the law of that country shall apply according to Article 4, para 2 of Rome I. Furthermore Article 9 is without prejudice to the conditions relating to the exercise of such action in accordance with national law or to the legal status of trade unions provided for in such law (para 28 of the preamble). The traditional principles of private international law effectively moderate the rule: the regulation shall not undermine the provisions of the law of the place of jurisdiction that must govern the situation (Article 16), while Article 26 preserves the public order of the place of jurisdiction.

In the specific case of posted workers, Directive 96/71 of 16 December 1996 aims to specify whether the law of the country of origin or that of the place where the work is carried out is applied. Its provisions, together with the European Court of Justice’s rulings in the Laval, Rüffert and Commission vs Luxembourg cases that interpret them, are the subject of widespread controversy. They relate specifically to the right to strike and to bargain collectively and how this can be reconciled with the freedom of establishment and the free movement of services. Since the Treaty of Lisbon has entered into force however, the right to take collective action has acquired, together with the European Union’s (EU) entire Charter of

Fundamental Rights, a value equivalent to that of the treaties. Although the Court has later confirmed its case-law, it is questionable whether this change in legal status has not shifted the balance between economic freedoms and this fundamental industrial right in favour of the latter. The amendments to this Directive, e.g. which of No 2018/957 of 28 June 2018, constitute further argument in that sense.

The situation clearly requires European and international standards that help to bring about an amicable resolution to such disputes, more specifically, extrajudicial conciliation, mediation and even voluntary arbitration procedures. Such procedures could be enshrined in heteronomous law instruments, international conventions or treaties or European regulations or directives. This is especially opportune in the hypothesis of transnational conflicts of law. However, framework agreements signed at the appropriate level by employers’ organisations and trade unions, or mutually agreed declarations or, even better, practical guidelines, seem in all cases, better suited to the current state of transnational professional relations.

In such conditions, it is good practice to draw inspiration from international instruments, and in particular the ILO’s monitoring mechanisms and mediation/conciliation approach, in order to develop such provisions, even when these standards and procedures are not technically applicable.

2. International standards and procedures as a source of inspiration for the amicable resolution of transnational industrial disputes

The ILO is a normative body that draws up international employment conventions and promotes their ratification. However, its activities also lead to decisions that are not of this nature, but rather are aimed at all constituent members, governments, employers’ organisations and trade union confederations. The measures it proposes have little or no binding force and are designated as recommendations, resolutions, practical guidelines, conclusions or joint declarations. Examples include the 1998

Declaration on Fundamental Principles and Rights at Work and the Tripartite Declaration of Principles Concerning Multinational Enterprises, which was adopted in 1977. European law is better integrated into the national laws of Member States and its regulations and directives can be incorporated without ratification procedures. However, it too uses soft law instruments, such as recommendations and conclusions, but above all it recognises the legal value of framework agreements between employers and trade unions; it even stipulates a procedure for extending such agreements.

Procedures for monitoring the compatibility of national and transnational judicial systems are different in the two organisations. More specifically, courts from Member States of the EU can request a preliminary ruling from the European Court of Justice if they are uncertain about the interpretation of a provision of European law. Such rulings have binding force. This is not the case with the conclusions adopted by the ILO’s own supervisory bodies, which consequently prefer to use reason and dialogue to resolve any breaches observed.

However, there are bodies that monitor the application of international labour conventions and recommendations. Some rely upon compliance reports that are sent periodically by governments (with copies issued to employers’ organisations and trade unions), while others operate on the basis of complaints. The role of the ILO’s supervisory bodies is not to deliver rulings. Rather, they reach conclusions based on the ILO’s own standards, which are then sent to the governments in question to help them overcome the problems encountered. The aim is not to condemn or reprimand a country that is at fault, but rather to engage in a positive discussion with it to ensure that the provisions in question are observed. All of their procedures function in this way, but the more complex or serious the problems prove, the more elaborate the mechanisms designed to stimulate such constructive dialogue and find solutions that comply with the conventions become.

These procedures take the form of mediation and are carried out by either the ILO’s own bodies, or by independent individuals or senior officials from the ILO secretariat, the International Labour Office, over the course of missions and interviews of varying formality. Simply the threat of a debate

at a board meeting or the ILO’s annual meeting has often led governments that

are at fault to seek amicable resolutions to disputes with the International Labour Office.

All of these mechanisms adhere to certain fundamental principles, foremost among which is the protection, just as in a trial, of the rights of the defendant: the State that is defending itself must therefore have the opportunity to have the last word in the exchange of arguments between the parties. The ILO also believes that its conventions must apply uniformly and consistently to all countries. Considerations relating to each country’s individual circumstances, its economic and industrial conditions or the state of its professional relations can only be taken into account at a later stage, when determining the means used to draw the dispute to a close.

When a serious problem arises, the Office prefers unofficial contacts in the first instance, which often enables it to find a solution without initiating or pursuing official infringement proceedings. The conduct of those appointed to carry out such contacts is largely based on the codes of conduct practised by national mediators and conciliators. It prizes speed, together with impartiality and respect of the parties’ equality, in-depth knowledge of cases and awareness of the requirements of good governance. These principles also apply during the totally informal discussions held with the representatives of transnational companies seeking advice on how to resolve a dispute. The ILO has also set up a helpdesk to support multinationals in implementing the aforementioned 1977 Declaration in their business activities. It is aimed particularly at company managers and their staff.

The regulations and principles that can be derived from how the ILO’s standards are monitored in practice can easily be reproduced at European or other transnational levels in a legal document on industrial disputes that extend beyond a particular country’s borders. It is equally possible to draw inspiration from two of the ILO’s recommendations – the aforementioned Recommendation 130 on the examination of grievances dating from 1967 and Recommendation 92 on voluntary conciliation and arbitration dating from 1951. I will now look at these two instruments individually. The first deals primarily with individual disputes, while the second mainly covers the amicable resolution of collective disputes.

It may seem surprising that the Organization, based on the shores of Lake Geneva, has drawn up so few standards on the amicable settlement of disagreements. This scarcity of standards is explained in large part by its unwillingness to restrict employers’ and workers’ organisations’ freedom of action or how they interact. German and Belgian law similarly do not

offer any more detailed regulations on these points for precisely the same reason. Furthermore, finding a common language between approaches in the English-speaking countries and in continental Europe to collective action and the role of arbitration could have proved a complex task, not to mention the vision of totalitarian regime that accounted for much in part of the world.

2.1. Grievances

Recommendation 130 includes the distinction, used in many systems of professional relations, between conflicts of rights and conflicts of interests. It specifies that its provisions do not apply to collective claims that aim to modify terms and conditions of employment. More specifically, the grounds for a grievance may be “any measure or situation which concerns the relations between employer and worker or which affects or may affect the conditions of employment of one or several workers in the undertaking when that measure or situation appears contrary to provisions of an applicable collective agreement or of an individual contract of employment, to works rules, to laws or regulations or to the custom or usage of the occupation, branch of economic activity or country, regard being had to principles of good faith.”.

As the recommendation prudently states, when procedures for the examination of grievances are established through collective agreements, the parties to such an agreement should be encouraged to include therein a provision to the effect that, during the period of its validity, they undertake to promote settlement of grievances under the procedures provided and to abstain “from any action which might impede the effective functioning of these procedures”. This section encapsulates the obligation to maintain peaceful relations within a company that is provided for by the law or drawn from the jurisprudence of many countries, in absolute (for any possible issues) or relative (issues covered by the agreement only) terms. The International Labour Office’s Committee on Freedom of Association accepted that strikes may even be prohibited when a collective agreement is in force.

Such mechanisms for settling disputes can also be included in company regulations or the codes of conduct of large national and multinational

firms. This approach is in line with the OECD’s guidelines for multinational enterprises, which are purely voluntary and do not offer any more specific instructions.

None of the provisions of Recommendation 130 restricts the right of workers to apply directly to the competent labour authority or to a labour court or other judicial authority. The solution to a conflict of rights as a result of differing interpretations of a legal text should be left to the competent tribunals. The Committee on Freedom of Association also allowed that strike action may be prohibited in such cases.

The recommendation goes on to state that, as far as possible, grievances should be settled within the undertaking itself according to effective procedures which are adapted to the conditions of the country, branch of economic activity and undertaking concerned and which give the parties concerned every assurance of objectivity. The Committee on Freedom of Association adds that these bodies should be prompt, impartial and considered as such by the parties concerned.

In the event that such methods prove unsuccessful, a definitive solution to the grievance must be sought in one (or more) of the following ways:

(a) procedures provided for by collective agreement (such as joint examination of the case by the employers’ and workers’ organisations concerned or voluntary arbitration by a person or persons designated with the agreement of the employer and worker concerned or their respective organisations);

(b) conciliation or arbitration by the competent public authorities;

(c) recourse to a labour court or other judicial authority;

(d) any other procedure “which may be appropriate under national conditions”.

In addition to the ILO’s standards and principles, we should also cite the United Nations’ Guiding Principles on business and human rights, which were developed by J. Ruggie and endorsed by the Human Rights Council on 16 June 2011. They clarify what is meant by a company’s responsibility

to respect human rights and provide global standards for preventing and addressing any possible negative consequences that business activities could have upon human rights.

Paragraph 31 in particular highlights that non-judicial grievance mechanisms, whether state-based or non-state based, should be:

— legitimate: they should enable trust from the stakeholder groups for whose use they are intended and be accountable for the fair conduct of grievance processes;

— accessible: they should be known to all stakeholder groups for whose use they are intended and provide adequate assistance for those who may face particular barriers to access;

— predictable: they should provide a clear and known procedure with an indicative time frame for each stage and clarity on the types of process and outcome available and means of monitoring implementation;

— equitable: they should seek to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;

— transparent: they should keep parties to a grievance informed about its progress and provide sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;

— rights-compatible: they should ensure that outcomes and remedies accord with internationally recognised human rights;

— a source of continuous learning: they should draw on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms.

Operational-level mechanisms should also be based on engagement and dialogue: consult relevant groups of people on the type of mechanism chosen to address their concerns and its functioning; prioritize dialogue as a means of dealing with and resolving complaints.

We should add that several international framework agreements have laid the foundations for setting up a body responsible for handling grievances.

They generally endorse an appeals procedure or, where required, several such procedures, rather than the involvement of a mediator (“ombudsperson”).

2.2. Conciliation, mediation and arbitration

The European Social Charter stipulates that, with a view to ensuring the effective exercise of the right to bargain collectively, States must undertake to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes.

The ILO’s brief Recommendation 92 dating from 1951 deals with this issue. It is limited to a few general principles and leaves it to the parties concerned to agree the procedures to be followed. However, the ILO does offer advice to help them decide upon the best way to proceed. The final paragraph of the instrument clearly states that, where applicable, none of the provisions should be interpreted “as limiting, in any way whatsoever, the right to strike”. Mandatory arbitration would in effect amount to withholding this right and hindering the free collective bargaining of working conditions.

The recommendation provides for the creation of voluntary conciliation machinery that assists in preventing and settling industrial disputes. It recommends that a procedure that is free of charge and expeditious be put in place either on the initiative of any of the parties to the dispute or ex officio by the voluntary conciliation authority. However, the Committee on Freedom of Association did accept that parties may have to pay for the conciliation and mediation/arbitration services, provided the costs are reasonable and do not inhibit the ability of the parties, in particular those with inadequate resources, to make use of the services offered.

Where the conciliation machinery is constituted on a joint basis, it should include equal representation of employers and workers. If all of the parties concerned agree to refer a dispute to a conciliation procedure, then they are encouraged to abstain from strikes and lockouts while conciliation is in progress. The same is true if they agree to refer a dispute to arbitration for

final settlement. They should also be encouraged to accept the arbitration award.

The Committee on Freedom of Association has stressed that the parties must be involved at all the different stages of the procedure. Once again, the arbitration system must be expeditious and independent and must appear as such. Its conclusions must not be predetermined by legislative criteria and its rulings must be applied immediately and in full. The ILO’s supervisory bodies take no position as to the desirability of conciliation over mediation or vice versa as both are means of assisting the parties in voluntarily reaching an agreement. Nor do they take a position as to the desirability of a separated conciliation and arbitration system over a combined mediation-arbitration system, as long as the members of the bodies entrusted with such functions are impartial and are seen to be impartial.

For their part, international trade union confederations have a policy of encouraging signatory parties to monitor the execution of any agreements reached and resolve their disagreements independently. They deem these parties to be best placed to do this, while at the same time accepting that third party organisations, national courts and extrajudicial bodies may, where necessary, be called upon to find a solution. However, there are also preliminary procedures, in particular conciliation and mediation, for settling potential disputes.

3. Conclusions: an opportunity for the ILO?

The difficulties just described should stimulate the ILO to strengthen its means of action. It would certainly be appropriate for the Organization to elaborate a global international instrument dealing with the applicable labour or social security law, the competent jurisdiction and the procedure to enforce court decisions in transnational labour conflicts of rights. Nevertheless, its adoption would not solve all difficulties and lead to peaceful settlement in all cases, especially of collective conflicts. The ILO

should therefore draw on its past experience to systematize and improve its practices of offering good offices in the implementation of its standards.

The Tripartite Declaration concerning Multinational Enterprises and Social Policy, adopted by the ILO Governing Body, 1977, and later amended, could be of some help. It fosters the designation by governments, employers and workers of national focal points on a tripartite basis to promote the application of the principles it contains. The procedure echoes the national contact points established for the implementation of the OECD Guidelines for Multinationals; their competence includes a role of mediation and conciliation to solve practical problems that may arise. Unfortunately, the ILO Declaration, in contrast to the OECD guidelines, does not provide for the direct involvement of transnational companies or NGOs in a focal points mechanism.

More pragmatically, the ILO has already, when requested and authorized, served as mediator in transnational labour conflicts: the quality and neutrality of its officials, with their first-hand knowledge of development problems in less industrialized countries, make the Organization an ideal third party. Its concrete involvement would contribute to solving the labour problems referred to above. Made more formal, arrangements could be inspired by the European Labour Authority that encourages cooperation between States on compliance with European law in its field of competence, organising coordinated and common inspections, ensuring mediation and facilitating the search for a solution in the event of cross-border disputes.

Mention could also be made of the mission carried out by the ILO to observe the process of the legitimization of the Collective Bargaining Agreement at the General Motors plant located in Silao, Guanajuato, under the framework of the Mexican Government’s compliance with commitments under the United States-Mexico-Canada Agreement on trade.

In the same manner, one can learn from the experience of the ILO Better Work programmes, which bring together the Government, national firms, international brands and retailers, trade unions and workers in the garment industry to improve working conditions and respect for labour rights. Enterprise assessments are conducted annually. The programme does not assess whether national law conforms to ILO Conventions, which is

the responsibility of the ILO supervisory bodies. If, however, the national law is not in line with core international labour standards, participating enterprises are assessed as to their compliance with those international labour standards.

In the Cambodia Better Work programme, for example, the ILO is responsible for setting up a monitoring system and conducting visits to the companies concerned. The project, jointly initiated by the ILO and the United States, aims at improving the situation of the workers in the textile enterprises of the country. It leads to a voluntary and consensual detailed evaluation of cases. Registration in the programme is a condition to obtain an export licence.

In brief, these examples suggest new ways to adjust and strengthen ILO action. The objective is to give some answers to whether the Organization is able, and if so how, to build on common legal grounds that bring greater social justice. The goal can be achieved only if all actors involved are held accountable in order not only to guarantee an equal right to fundamental freedoms, but also, as stressed by John Rawls, to maintain economic inequalities within limits that allow the disadvantaged to benefit from means that enable them to achieve real equality of opportunity.

Belgium

Direction Générale, Relations collectives de travail

Guy Van Gyes

Director – general, Collective Labour Relations, Federal Public Service Employment, Labour and Social Dialogue

The Belgian Federal Public Service Employment, Labor and Social Dialogue offers conciliation and mediation services to the private and the public sector in collective labor disputes. This state department acts as a third party to mediate collective conflicts at the level of the enterprise/company in the private sector, primarily through the Conciliation bureau (further referred to as CB), created within a Joint Committee (paritair comité/commission paritaire). A Joint Committee is the bi-partite collective bargaining body at sector level, composed by members of the representative social partners and chaired by a social conciliator of the mentioned public service. Collective dispute mediation in the private sector has a long-standing tradition in Belgium. In 1968, a legal framework anchored the system of collective dispute resolution, mandating federal social conciliators mediators to resolve disputes between employers and employees with the help of the CB (The Collective bargaining Act of 5 December 1968). In the public sector however, mediation is not yet widespread because the government implemented it only rather recently (since 2013). In the public sector, the mediator solely manages the process between the conflicting parties, without the advantage of a CB. In this chapter we focus only on the role of the Belgian social conciliators in the private sector, where the system of collective bargaining is fully developed and characterized by lots of institutional organization and co-ordination. In this setting a unique system of conciliation and mediation

has been developed and in which the social partners themselves (can) play a particular role, supported by the mentioned public administration.

1. Organisation

1.1. The department

The department ‘social conciliation’ is part of the directorate-general Collective labour relations, which is one of the five DGs belonging to the Federal Public Service Employment, Labour and Social Dialogue. Although Belgium is more and more a federalized country, labour law and collective bargaining in the private sector has stayed a federal competence with a specific Minister of Work (minister van werk/minister du travail) exercising this power.

As early as 1946, two civil servants (one for each language region) were responsible for mediation and conciliation. At the end of the sixties, a specific Labour Relations Office was set up within the Ministry of Labour. The division ‘sociale bemiddeling/conciliation sociale’ was born. Since the Federal Ministry was reorganised on April 1st of 2003 into the Federal Public Service Employment, Labour and Social Dialogue, the duties of the Labour Relations Office where transferred to the Directorate General Collective Labour Relations.

The mission of the DG is to prepare, promote and implement policy on collective labour relations, support social dialogue, and help to prevent and resolve labour disputes. As such the department considers itself as a kind of operator of a large social dialogue policy network with the main focus on the sectoral level and the following main tasks:

• Administrative organisation: sectoral joint committees and their meetings; registering and enforcing collective agreements;

• Conciliation and mediation;

• Monitoring that laws and rules are respected;

• Contact point for insiders and outsiders;

• Knowledge management (see www.minimumlonen.be or recherche CCT).

The department currently counts 17 social conciliators in active duty. Four of them specialize (partly) in the task of conciliator in the public sector.

In their daily activities they are supported by a so-called ‘secretary’. They support the social conciliators in the technical and practical organization of their duties, in particular the different social dialogue meetings these conciliators chair (on average about 100 to 120 per year). The secretaries draft for example the minutes of these meetings. In practice a kind of ‘tandem’ grows between these two functionaries and the (sometimes more experienced) secretary develops into a person of trust that acts as a sounding board in difficult moments of conciliation, high-tension meetings and/or periods of high workload.

1.2. The job position of a civil servant

The law of December 5, 1968 on collective labor agreements and joint committees stipulates that the King appoints the chairmen and vice-chairmen from among persons competent in social matters and independent of the interests which the committee or sub-committee has to deal with (article 40). The same article specifies that, in the performance of their duties, the chairmen and vice-chairmen are under the authority of the Minister. And article 49, paragraph 2 of the law stipulates that “the Minister supervises the operation of joint committees and sub-committees.”

In addition, the Royal Decree of October 27, 2009 concerns the selection of holders of the position of social conciliator advisor (MB November 19, 2009).

Social conciliators and their assistants are responsible for:

• the prevention of industrial disputes and monitoring the initiation, course and conclusion of such disputes;

• to carry out any social conciliation mission;

• maintaining permanent contact with employers’ and workers’ organizations, and with inspectors from the Ministry of Employment and Labor;

• draw up reports on industrial relations in a given industry, sector or company.

• chair joint committees.

Social conciliators are civil servants, subject to the general rules of the civil service. They are subject to the ethical rules of the civil service, as well as to the rules governing career development. A derogation applies to the allocation of vacancies for the position of social conciliator, allowing the recruitment of people from outside the administration at the high level of civil service grade that these professionals obtain from the start (namely A3 in a grade system that contains at the A University degree level maximum 5 levels).

As of 2009, selection and recruitment take place through the general public administration recruitment office (SELOR). To be considered for the position, candidates must meet the following requirements of education and professional experience:

• A master’s degree (or similar degree of at least 4 years) and at least 6 years’ experience in social matters of which at least 4 years in collective bargaining;

• Or a bachelor’s degree (or similar degree of at least 2 years) and at least 10 years’ experience in social matters of which at least 6 years in collective bargaining.

Besides the generic test of the Federal public service to apply for a vacancy of level A, the selection procedure consists of a test of cognitive abilities and social compentences, knowledge of collective labor law and a case presentation/selection interview for a panel of external social dialogue experts. Once recruited, an experienced mediator mentors the new mediator during their first year. The new conciliator makes progress reports of experience gained and educational programs completed at regular intervals.

In a profiling of the necessary attitudes and social competences the following list is composed:

• Self-knowledge and impartiality

• Involvement, detachment and receptivity

• Psychological insight, sense of confidentiality

• Confidence, assertiveness, punctuality, correctness

• Independence from social partners, political authorities and the media

• Mastery of emotional elements, in particular verbal aggression; sense of communication, intuition

1.3. Under the authority of the Federal Minister of Work

The Federal Minister of Work is responsible for the organisation and support of social dialogue at all levels (national, sectoral, enterprise), as well as for social peace. Conciliators have a privileged relationship with the Minister responsible for Work, as they are required to inform the Minister (through his/her Cabinet officers) directly (or, if he or she so desires, the conciliator). As such he can call on these officials to start a conciliation intervention.

In practice, conciliators appointed as joint committee presidents are called upon to deal with all disputes arising in their sectors, except in special cases or acute conflicts, for which the Minister may decide to appoint a conciliator in addition to the first, or to designate another conciliator ex officio. The principle remains that the parties involved in a collective dispute do not have a choice of conciliator. It is not up to an individual to request the appointment of a conciliator in a collective dispute, just as social partner organisations cannot impose the appointment of a particular conciliator as president of their joint committees. The conciliator must be able to carry out his or her mission without fear of being replaced if he or she displeases either party.

In this regard, the following remark is also important. In 2004, the Belgian Cour de Cassation ruled that “in the exercise of his mission, the social conciliator, a member of the staff of this service and an agent of the State, is subject to the authority of the Minister of Employment and Labor, whether or not this mission is entrusted to him at the Minister’s request. Consequently, the president of the labor court ruling in summary proceedings cannot entrust a social conciliator with a conciliation mission.”.