10.6092/issn.1561-8048/10137
In this contribution, a brief outline of wage-setting in Belgium will be given. Wages will be contextualized as constituting an essential element of the employment relation. The setting of these wages is the result of a combined exercise of individual and collective autonomy. In cases of conflict, collective autonomy will prevail. The contribution addresses the limits of both individual and collective autonomy and identifies the underlying rationales. Since collective autonomy has now for decades been exercised under the shadow of the law, the question is warranted whether this structural system of wage moderation is still compatible with the principles of free collective bargaining.
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Filip Dorssemont
Italian Labour Law e-Journal
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Wage-setting in Belgium: Collective Autonomy under the Shadow of the Law
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2019-12-17
2019-12-12
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ILLeJ
Filip Dorssemont
2019/12/17
10.6092/issn.1561-8048/10137
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Wage-setting in Belgium: Collective Autonomy under the Shadow of the Law
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Wage-setting in Belgium: Collective Autonomy under the Shadow of                         Italian Labour Law e-Journal
the Law                                                                                         Issue 2, Vol. 12 (2019)
Filip Dorssemont                                                                                      ISSN 1561-8048
Filip.dorssemont@uclouvain.be                                          https://doi.org/10.6092/issn.1561-8048/10137




     Wage-setting in Belgium: Collective Autonomy under
                    the Shadow of the Law
                                            Filip Dorssemont


 1. Wages and the Individual Employment Contract. 2. Rationales for Restrictions of
 Individual Autonomy. 3. Wages and the Collective Labour Agreement. 4. Rationales for
 Restrictions on Collective Autonomy. 5. Wage Moderation in Belgian Law: Quousque
 tandem? 6. Assessment. 7. Conclusions.


                                                      Abstract

     In this contribution, a brief outline of wage-setting in Belgium will be given. Wages will be
     contextualized as constituting an essential element of the employment relation. The setting of
     these wages is the result of a combined exercise of individual and collective autonomy. In cases
     of conflict, collective autonomy will prevail. The contribution addresses the limits of both
     individual and collective autonomy and identifies the underlying rationales. Since collective
     autonomy has now for decades been exercised under the shadow of the law, the question is
     warranted whether this structural system of wage moderation is still compatible with the
     principles of free collective bargaining.

     Keywords: Wage-setting, Employment Contract, Collective Bargaining, Statutory Law,
     Hierarchy.




 1. Wages and the Individual Employment Contract.

    Wages are at the heart of the employment contract1. The Belgian law of 3 July 1978 on
 employment contracts refers to the co-existence of two separate contracts based on an
 outdated distinction between blue collar and white-collar workers2. Both legislative
 definitions adopt an identical approach to wages. They define the contract of employment
 primarily from the perspective of the worker who takes up an obligation to execute work
 under the authority of the employer. Although the definition is mute on the obligation of the
 employer to provide employment, the obligation to pay a remuneration is mentioned as the


 
   Professor of Labour Law, Université Catholique de Louvain, Vrije Universiteit Brussel. This article has been
 submitted to a double-blind peer review process.
 1 This paper provides a brief outline of wage-setting in Belgium. For a nuanced and more in-depth analysis of

 wage-setting in Belgium see Clesse J., Kéfer. F., Le contrôle des normes relatives à la modération des rémunérations au
 regard du droit de négociation collective, in Revue droit social, 2017, 1-2, 89-112. For a comprehensive monography:
 Vanthournout J., Humblet P., Loonmatiging en de loonnorm 2011-2012, Story Publisher, Gent, 2011.
 2 See Articles 2 and 3 of the Loi du 3 juillet 1978 relative aux contrats de travail.
Filip Dorssemont                                                                          Italian Labour Law e-Journal
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                                                                                                        Section: Theme


counterpart of the obligation to work. Thus, the employment contract is a species of the genus
of a contract based upon mutual obligations (contrat synallagmatic).
    The obligation to pay wages is an essential element of an employment contract as well as a
legal consequence of its conclusion. For this reason, this obligation is also reiterated together
with the obligation to provide employment as an employer’s obligation3. Since it is an
essential element, the contract needs to specify how the level of the wages can be determined.
Article 20 of the Law on the employment contracts urges the parties to determine the
periodicity and the place of payment. Despite the quintessential character of wages, the Law
of 3 July 1978 does not contain a definition of wages. Other legislative instruments define
wages for the purposes of these instruments and within the ambit ratione personae of these
instruments. The objectives of these instruments are related to the issue of the protection of
wages, to the issue of the safeguard of the system of social security or of public finances (tax
law). These definitions cannot be extrapolated linea recta. Hence, the best way to define wages
is to adopt a civil law perspective4. Wages constitute what is being paid as the counterpart of
the obligation to work.
    The “synallagmatical” logic inherent to civil law implies that no wages need to be paid if
the contractually defined work has not been performed. Article 27 of the Law of 3 July 1978
contains a number of exceptions to this harsh logic which tend to ensure a right to
remuneration in cases where a worker is unable to work or to continue to work, despite a
(successful or unsuccessful) attempt to reach his work in a normal manner5. These provisions
cannot be used to ensure a right to remuneration for a person who was willing to work, has
reached the workplace, but is unable to work due to an internal strike affecting the enterprise
of his employer6. These provisions also protect the worker who is unable to work because
he wants to cast a vote during the political elections7.
    The quintessential character of wages is also stressed in case law relating to the alteration
of the wages pendent contractu. Thus, article 25 of the Law of 3 July 1978 prohibits clauses
which would allow an employer to change unilaterally the conditions of the contract of
employment. Although the Cour de Cassation has reduced the scope of this provision to
essential working conditions8, it has been ruled that wages are part of this essence9. In absence
of a clause, the unilateral change of working conditions by an employer can be qualified as
an implicit dismissal, provided that these changes affect essential working conditions in a
substantial manner, such as wages10.
    The Law of 3 July 1978 has integrated provisions of pre-existing separate laws dealing
with the contract of employment of blue-collar workers (1900) and another statute dealing
with the contract of employment of white-collar workers (1922). The latter statute did
provide an interesting provision stating that contracts of employment stipulating a
remuneration which was inferior to half of the habitual remuneration were null and void11.

3 See Article 20, 1° and 3° Loi du 3 juillet 1978 relative aux contrats de travail.
4 See De Vos M., Loon naar Belgisch arbeidsovereenkomstenrecht: rechtspositie – recht op loon, 2001, 39-79.
5 See Article 27,1° Loi du 3 juillet 1978 relative aux contrats de travail.
6 See Article 27, 2° Loi du 3 juillet 1978 relative aux contrats de travail.
7 See Article 27, 3° Loi du 3 juillet 1978 relative aux contrats de travail.
8 Cass. 14 October 1991, in R.W., 1991-92, 809.
9 Arbrb. Brussel, 2 May 2000, Soc. Kron. 2002, 51.
10 Cass. 23 December 1996, in Journal de Tribunaux du Travail, 1997, 145.
11 See Article 6 Loi sur les contrats d’employés.



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This provision recognizes that a certain imbalance could generate nullity. The provision was
necessary since Article 1118 of the Civil Code of 1804 provides that an imbalance (lésion) in
any contract can only generate such a nullity, if it was specifically provided for by the law.
This provision was not recapitulated in The Law of 3 July 1978, since at that time wages were
universally determined by means of a collective agreement.
   The absence of an obligation to pay wages as the counterpart of work will inevitably
prevent a person performing work from falling within the ambit of the Law of 3 july 197812.
A typical example is an employment relation sui generis of a volunteer working for an altruistic
organization (un objectif désinteressé) which does not intend to distribute benefits between its
members or administrators. A specific statutory instrument of 3 July 2005 provides that
voluntary workers who are not obliged to work can be reimbursed instead of being paid. The
reimbursement seeks to cover their genuine costs. However, costs for an amount inferior to
24, 79 euro a day or 991, 57 euro a month do not need to be proven13.


2. Rationales for Restrictions of Individual Autonomy.

   As a general principle, the determination of wages is the result of the exercise of individual
autonomy between an isolated worker and his future employer. This individual autonomy is
not unlimited. Two major rationales can be mentioned in order to restrict individual
autonomy in the field of wage determination. Both rationales are intertwined with the
safeguard of two fundamental rights: the right to fair and just remuneration and the freedom
of collective bargaining. The unrestricted exercise of individual autonomy was unable to
ensure that the remuneration of work was fair and just. Hence, individual autonomy is not a
sufficient guarantee to ensure the right to a fair and just remuneration. This idea has been
expressed as early as 1891 in a papal encyclical Rerum novarum as followed:
   “Let the working man and the employer make free agreements, and in particular let them
agree freely as to the wages; nevertheless, there underlies a dictate of natural justice more
imperious and ancient than any bargain between man and man, namely, that wages ought
not to be insufficient to support a frugal and well-behaved wage-earner. If through necessity
or fear of a worse evil the workman accepts harder conditions because an employer or
contractor will afford him no better, he is made the victim of force and injustice.”
   The Encyclical provided a unique solution to rebalance this imbalance inherent to
individual autonomy, clearly rejecting the creed of the exegetic school that everything which
was contractual was necessarily “just”. The Encyclical rejected State intervention through the
setting of a statutory minimum wage but favored the development of collective agreements
setting wages between trade unions and employers. The Pope pleaded in favour of a still
inexisting statutory framework for collective bargaining in the following words:
   “In these [read: wages] and similar questions, however - such as, for example, the hours
of labor in different trades, the sanitary precautions to be observed in factories and
workshops, etc. - in order to supersede undue interference on the part of the State, especially
as circumstances, times, and localities differ so widely, it is advisable that recourse be had to

12 See   M. De Vos, (4) 80-81.
13   Article 10 Loi relative aux droits des volontaires.

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societies or boards such as We shall mention presently, or to some other mode of
safeguarding the interests of the wage-earners; the State being appealed to, should
circumstances require, for its sanction and protection”.
    Ever since 1968, the Belgian Law on collective agreements establishes a clear-cut
hierarchy between the expression of collective autonomy through collective agreement above
the expression of individual autonomy through the conclusion of an individual employment
contract14. This hierarchy is sanctioned by establishing that provisions of an individual
employment contract which are contrary to an applicable collective agreement binding for
an employer are null and void15. Furthermore, collective agreements setting minimum wages
at intersectoral and sectoral level will function as default rules for those employers who are
not bound by them due to the fact that they are not affiliated in any direct or indirect way to
the sectoral or intersectoral employers’ organisations16.
    In Belgium minimum wages at intersectoral level are set by an interprofessional collective
agreement. Thus, CCT n. 43 sets minimum wages at 1.562,59; 1.604,06; 1622,48 Euro in
function of a troublesome distinction based upon age.
    The supremacy of collective autonomy above individual autonomy is also in line with a
proper understanding of the freedom of collective bargaining as interpreted by the Freedom
of Association Committee17.
    Another rationale which justifies restrictions of individual (as well as in a number of cases
of collective autonomy) is the wish of the Belgian legislator to combat discrimination based
upon a wide range of criteria, broader than those protected on the basis of EU law. Due to
the fact that this rationale covers both dimensions of autonomy, it will be treated in a
transversal way underneath.


3. Wages and the Collective Labour Agreement.

    In Belgian law there is no expression similar to the powerful notion of Tarifverträge.
However, the wage setting through collective agreements enjoys a much more vaste coverage
than under German Law. Thus, in Belgium collective agreements enjoy a broad coverage due
to a double mechanism. The first mechanism, the so-called extension automatique, dissociates
the binding of a collective agreement at enterprise, sectoral or intersectoral level from the
membership of any trade union18. Any worker can invoke the normative provisions dealing
inter alia with wages against his employer, once the employer is bound by a collective
agreement due to the fact that he is a signatory party or a member of a signatory organisation.
A second mechanism, which is able to extend the binding of sectoral and intersectoral
agreements, is the extension by means of an ad hoc royal decree19. This mechanism is solely
dependent upon the request of a single signatory party and the discretionary exercise of the
governmental power. In case of a demand to extend a sectoral collective agreement, no veto

14 Article 51 Loi sur les conventions collectives et les commissions paritaires.
15 Article 11 Loi sur les conventions collectives et les commissions paritaires.
16 Article 26 Loi sur les conventions collectives et les commissions paritaires.
17 International Labour Office, Freedom of association, 2018, nr. 1511.
18 Article 19, 4° Loi sur les conventions collectives et les commissions paritaires.
19 Article 28 Loi sur les conventions collectives et les commissions paritaires.



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can be exercised by the intersectoral confederations. As a result of such operations, the
individual and collective normative provisions of the collective agreements will cease to be
mere default rules for non-affiliated employers. They will be as mandatory for them as for
the affiliated employers.


4. Rationales for Restrictions on Collective Autonomy.

    The question has arisen whether a State can intervene in order to restrict the precepts of
collective autonomy in the field of wage-setting. Such an intervention can hardly be
warranted on the basis of the rationales which are mobilized to justify restrictions of
individual autonomy. The rationales which tend to be invoked are different. As indicated by
the Title of a Belgian statutory act, the official objective of wage moderation is linked to a
wish of the Belgian legislator to safeguard the competitiveness of the Belgian economy. The
prime mobile is not an issue of public budgetary policy, but an issue of the impact of the lack
of competitiveness on the employment situation in Belgium. Thus, the level of wages, the
competitiveness as well as employment are considered to be interwoven. This mantra is so
deeply rooted that it is being applied to any salary, to any worker, to any branch of the private
sector. In sum, the statutory intervention is not driven by a labour law paradigm based upon
fundamental rights but based upon employment policy.
    Another rationale to restrict collective autonomy as well as individual autonomy is much
more driven by an objective to uphold human rights. Belgian anti-discrimination provisions
tend to combat discrimination based upon sex, race, ethnic origin, age, sexual orientation,
civil status (état civil), birth, fortune, religious, philosophical, trade union convictions,
language, current or future state of health, handicap, a physic characteristic or social origin20.
    Other legislative provisions tend to combat discrimination between part time workers and
full-time workers as well as discrimination between workers with a fixed term and indefinite
term contract21.
    As a general principle, these provisions do not allow to combat unequal treatment
between workers employed by different employers. In this respect, the provisions dealing
with unequal treatment between temporary agency workers and workers of the user
undertaking constitute progress22. They allow a comparison between workers employed by
different employees.




20 La Loi du 10 mai 2007 tendant à lutter contre la discrimination entre les femmes et les hommes; La Loi du
22 avril 2012 visant à lutter contre l’écart salarial entre hommes et femmes, La Loi du 10 mai 2007 tendant à
lutter contre certaines formes de discrimination and La Loi du 30 juillet 1981 tendant à réprimer certains actes
inspirés par le racisme ou la xénophobie.
21 Loi du 5 mars 2002 relative au principe de non-discrimination en faveur des travailleurs à temps partiel and

Loi du 5 juin 2002 sur le principe de non-discrimination en faveur des travailleurs avec un contrat de travail à
durée déterminée.
22 Article 10 La Loi du 24 Juillet 1987 sur le travail temporaire (Article 10).



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5. Wage Moderation in Belgian Law: Quousque Tandem?

    Measures of wage moderation undoubtedly constitute the most important restriction of
collective autonomy under Belgian law. The introduction of a policy of wage moderation is
at odds with a more Fordistic paradigm of industrial relations which has prevailed during the
so called “Trente Glorieuses” (1944-1975). Fordism was based upon a trade-off between
unfettered collective autonomy on the one hand and an attempt to raise productivity and
enhance social peace on the other hand. The idea was to guarantee that workers had a fair
share of the benefits stemming from the rise of the productivity23. As indicated supra wage
moderation is based upon another philosophy. The presumption was that wage increase
would hamper competitiveness of the Belgian economy. It was also argued that wage
moderation as such would create jobs or prevent job losses. The argument of productivity
was reversed. Instead of arguing that a rise in productivity should be reflected in a rise of
wages, it was argued that wage increases could only be warranted if there was a prospect of
a rise in productivity. Ever since 1976, the period of unfettered collective autonomy and free
wage bargaining has been abandoned. During the economic crisis (1976-1989), the Belgian
government used heteronomous measures of ad hoc wage moderation based upon so-called
arrêtées-lois. These instruments were based upon the transferal of legislative powers to the
governments for a short duration24. In In 1989 a general statutory framework for
governmental intervention was adopted for an indefinite period. The Loi de sauvegarde de la
compétitivité du pays of 6 January 1989 provided for a role of the Conseil central de l’Economie to
assess post factum on an annual basis the decrease of the competitiveness of the Belgian
economy in relation to the 7 most important commercial partners. In case of degradation,
the social partners or the legislator could intervene to moderate wages. In case of exceptional
circumstances and a brutal degradation, the Government could intervene as well outside this
“Belgian semester”. In 1996, the previous statute was partially repealed and replaced by the
Loi relative à la promotion de l'emploi et à la sauvegarde préventive de la compétitivité 25. The title of the
law suggests a firm believe that wage moderation, increase of competitiveness and
employment creation are intertwined. The perimeter of competitiveness was reduced to
three neighbouring countries (France, Germany, Netherlands). The post factum assessment
was replaced by a preventive assessment –of the expected evolution of the wages for the
next two years. The social partners were invited to conclude an agreement on Wage
moderation and Job Creation taking into account these expected developments and
preventing an increase of wages which would exceed the wage increases in these
neighbouring countries. Indexation of salaries would remain unaffected. If no agreement
could be reached, the Government would intervene and freeze wage increases, with the
exception of the nominal increases based upon mere indexation.


23 See  inter alia: Cassiers I., Denayer L., Concertation sociale et transformations socio-économiques depuis 1944, in Etienne
Arcq E., Capron E., Leonard E., Reman P. (eds.), Dynamiques de la concertation sociale, CRISP, Bruxelles, 2010, pp.
75-92; Meynen A., Omtrent de fordistische ideologie. Proeve van een lectuur van het Ontwerp van overeenkomst tot sociale
solidariteit, in Luyten D., Vanthemsche G. (eds.), Het Sociaal Pact van 1944, VUBPress, Brussel, 1995, 55-88.
24 See especially: Rigaux M., Arbeidsrecht doorheen de bijzondere machtenbesluiten, in Verboven X. (ed.), Actuele

Problemen van het arbeidsrecht, 1984, 450-499.
25 Loi du 26 juillet 1996 relative à la promotion de l'emploi et à la sauvegarde préventive de la compétitivité.




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   In sum the bargaining is taking place under a depressing shadow of the law. Furthermore,
any dispute among social partners about the expected increase of wages in neighbuoring
countries can hardly be qualified as a conflict of interests. It should rather be qualified as a
scientific dispute, or a conflict in the field of futurology.
   Despite nearly three decades of direct State intervention or of wage bargaining under the
depressing shadow of the law in an effort of safeguarding what was called competitiveness,
the Council of the European Union did not fail to express some criticism on the system of
wage setting in Belgium from the very start of the so-called European semester26. In 2011
and 2012 the Council urged the Belgian government “to take steps to reform, in consultation
with the social partners and in accordance with national practice, the system of wage
bargaining and wage indexation, to ensure that wage growth better reflects developments in
labour productivity and competitiveness”27.
   Thus, the Council made it abundantly clear that it was above all obsessed with the idea of
competitiveness even to the detriment of the purchasing power of the working class. The
2012 recommendation also urged the government to ensure “the implementation of ex post
correction mechanisms foreseen in the 'wage norm'”, as if the preventive nature was not
enough. Furthermore, it suggested to facilitate “the use of opt-out clauses from sectoral
collective agreements to better align wage growth and labour productivity developments at
local level”. Such a recommendation is remarkable insofar as no statutory provision actually
prevents sectoral social partners to insert opt-out clauses in sectoral collective agreements.
These clauses would not as such formally violate the statutory hierarchy between sectoral
collective agreements and collective agreements at enterprise level. In 2013 the Council
recommended that the wage setting system, including wage indexation had to be reformed
“in particular by taking structural measures, in consultation with the social partners and in
accordance with national practice, to ensure that wage setting is responsive to productivity
developments, reflects sub-regional and local differences in productivity and labour-market
conditions, and provides automatic corrections when wage evolution undermines cost-
competitiveness”. This recommendation was reiterated in 201428. Such a recommendation is
in my view at odds with a clear-cut constitutional option to construe labour law as an issue
of federal labour law, rather than as an issue of the federate entities. Although the European
Union might have played a major role in organizing social dumping at EU level, there is no
reason to impose an obligation upon Member States to organize social dumping within the
boundaries of their national labour market.
   From 2015 onwards, recommendations tend to be less critical or fleshed out. In 2016 the
Council in fact saluted the intended review of the Law of 1996 on the promotion of


26 For a comprehensive in-depth study, see Pecinovsky P., EU Economic Gouvernance en het recht op collectief
onderhandelen, die Keure, Brugge, 2019.
27 Recommendation for a Council Recommendation on the National Reform Programme 2011 of Belgium and

delivering a Council opinion on the updated Stability Programme of Belgium 2011-2014, SEC/2011/0802
final ; Recommendation for a Council Recommendation on Belgium’s 2012 national reform programme and
delivering a Council opinion on Belgium’s stability programme for 2012-2015; COM/2012/0314 final;
Recommendation for a Council Recommendation on Belgium’s 2013 national reform programme and
delivering a Council opinion on Belgium’s stability programme for 2012-2016; COM/2013/0351 final.
28 Recommendation for a Council Recommendation on Belgium’s 2014 national reform programme and

delivering a Council opinion on Belgium’s 2014 stability programme, /* COM/2014/0402 final.


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employment and the safeguarding of competitiveness. The 2017, 2018 and 2019
recommendation do not contain recommendations regarding wages. The silence of the
Council can be interpreted in two ways. It could be regarded as an expression of its wish to
be more reserved on the issue of wage-setting or rather as an expression of its satisfaction
with the reforms introduced by the government of Prime Minister Louis Michel. The Michel
administration has implemented a number of measures which were part of its initial Accord
du gouvernement. Thus, a formally temporary reform of the indexation mechanism took place.
A statutory instrument of 23 April 2015 provided that wages could not be indexated starting
from 1 April 2015 until a non indexated inflation of 2 percent had been reached29. A judicial
attack at the Constitutional Court on this statutory law based upon a set of important
constitutional principles such as the right to “fair and just remuneration”, “collective
bargaining”, “equality” property did not turn out to be successful. In 2017 the Law of 1996
was amended30 in order to allow Belgium to introduce ex post corrections if calculations
proved to be wrong and in order to overcome the historic gap in wage competitiveness
predating the situation prior to 1996. Furthermore, the reform indicated that in case of an
agreement between social partners, such an agreement had to be enshrined in a formal
intersectoral agreement concluded within the Conseil national du travail. This modification
corroborates the legal nature of the so-called “accord interprofessionnel”31.


6. Assessment.

    The systematic legislative and governmental intervention over a period of at least 30 years
is problematic in the light of the principle of the freedom of collective bargaining. Both the
ILO Freedom of Association Committee as well as the European Committee on Social
Rights have given guidance on the boundaries of measures of wage moderation entering into
conflict with the freedom of collective bargaining.
    In the Belgian scenario these restrictions can be characterised as putting a cap on
negotiating wage increases which go beyond the level of the increase in the cost of living.
These measures are structural, embedded in successive statutory instruments all of them
concluded for an indefinite term. If given a closer look, the only dimension which at first
side seems fairly unfettered is the status quo of an indexation. However, if given a closer look,
this status quo is not as stable as it might seem and definitely not that respectful of the
principle of collective autonomy. Thus, social partners are confronted with governmental
intervention in fixing the base reference for indexation, which has ceased to be a grid
autonomously defined32. Some of the governmental interventions can only be qualified as an
intervention setting aside existing collective agreement. Such an assessment is in fact
inevitable since some collective agreements tend to be concluded for an indefinite period.

29 La Loi du 23 avril 2015 concernant la promotion de l'emploi (M.B. 27 avril 2015).
30 La Loi du 19 mars 2017, MB 29 mars 2017.
31 On the issue of the legal nature of the Accord interprofessionnel prior to the legislative modification, Ficher

I., L’accord interprofessionnel a-t-il une place parmi les sources de droit du travail?, in Cartuyvels, Y., Dumont, H., Gerard,
P., Hachez, I., Ost, F., Van De Kerchove, M. (eds..), Les sources du droit revisitées. Vol.2: Normes internes
infraconstitutionnelles, Presses de l’Université Saint-Louis, Brussels, 2019, 407- 442.
32 See Arrêté royal du 24 décembre 1993 portant exécution de la loi du 6 janvier 1989 de sauvegarde de la

compétitivité du pays.

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The Laws of 1989 neither the law of 1996 contain any compensatory measures able to
appease the situation of vulnerable workers confronted with wage moderation.
   These particular characteristics of wage moderation under Belgian Labour law taken as a
whole over a period which can be said to have started from 1976 can hardly be said to be
compatible with the” jurisprudence” developed by the two monitoring bodies, id est the FAC
and the ECSR. In this respect, it is astonishing to observe that neither the CEACR neither
the ECSR has ever censured the Belgian reports in the light of the principle of collective
bargaining they have built.
   In this respect, it is worthwhile to quote the following maxima of the Compilation on the
Freedom of Association (FAC)33:
   “The impossibility of negotiating wage increases on an ongoing basis is contrary to the
principle of free voluntary collective bargaining enshrined in Convention No. 98 (no. 1462).
   Legislative provisions prohibiting the negotiation of wage increases beyond the level of
the increase in the cost of living are contrary to the principle of voluntary collective
bargaining embodied in Convention No. 98; such a limitation would be admissible only if it
remained within the context of an economic stabilization policy, and even then only as an
exceptional measure and only to the extent necessary, without exceeding a reasonable period
of time (no. 1463).
   In a case where government measures had fixed the base reference for the indexation of
wages, whereas the parties had fixed another indexation system, the Committee recalled that
the intervention of a government in areas which traditionally have always been negotiated
freely by the parties could call into question the principle of free collective bargaining
recognized by Article 4 of Convention No. 98, if it is not accompanied by certain guarantees
and in particular if its period of application is not limited in time (no. 1463)”.
   The systematic legislative and governmental intervention over a period of at least 30 years
might be problematic in the light of Article 6 § 2 ESC as well34. The ESC is critical about
interventions which are at odds with existing agreements35, although it is more lenient on
wage freezes which are subsequent to a failure to reach an agreement about wage moderation
among social partners36. Although, it could be argued that under Belgian law the State
intervention always had a subsidiary character and that quite often the moderation was based
upon agreements, genuine Free collective bargaining in Belgium has ceased to exist. Ever
since 1989 it takes place under the statutory anchored shadow of the past or future evolution
of wages in a number of identified Member States and it precludes an autonomous definition
of indexation mechanism.
   The intervention of the Belgian State has ceased to have an exceptional character, neither
does it operate within a reasonable period of time. The Belgian State has also intervened in
a structural manner (exclusion of inter alia: alcohol, tobacco, fuel) and an ad hoc manner to
supervise the system of indexation. There are no obvious compensating measures.


33 See International Labour Office, Freedom of association. Compilation of decisions of the Committee on Freedom of
Association, 2018, 346.
34 For an overview on Article 6: Dorssemont F., The right to bargain collectively, in Bruun N., Loercher K.,

Schömann I. and Clauwaert S. (eds.), The European Social Charter ad the employment relation, Hart Publishing,
Oxford, 2017, 249-288.
35 ECSR, Conclusions, XX-3, Spain.
36 ECSR, Conclusions, XX-3, Belgium.

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Filip Dorssemont                                                           Italian Labour Law e-Journal
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                                                                                         Section: Theme


    Despite this clear-cut case of violations over a long period, judicial or quasi-judicial
remedies have not proven to be successful. Thus, the ECSR in its analysis of the conformity
with regard to reference period 2009-2013 took into account the particularities of this system
of bargaining under the shadow of the law but refused to issue a negative conclusion.
    The ILO Freedom of Association Committee has only been requested to assess the
governmental intervention once, right at the start of the process. The Freedom of
Association Committee in Case nr 1182 (1983), issued a warning, without formally stating
that the principles of freedom of association had indeed been violated. It stated:
    “The Committee notes that the measures which gave rise to the complaint were adopted
on the basis of a law of 1982 which attributes certain special powers to the King within the
framework of a policy of economic and financial recovery, the reduction of public
expenditure and the creation of jobs.
    With regard to the measures taken under Royal Order No. 180, the Committee notes the
assurances given by the Government that the prohibition of increases in remuneration above
indexation will be lifted as of 31 December 1984. The Committee recalls that the intervention
of a government in areas which traditionally have always been negotiated freely by the parties
could call into question the principle of free collective bargaining recognised by article 4 of
Convention No. 98 if it is not accompanied by certain guarantees and, in particular, if its
period of application is not limited in time
    The Committee expresses the hope that all these measures thus adopted will be applied
on an exceptional basis and that they, will be lifted within a short period of time”37-
    Neither did the CACR ever reacted, despites a formal critical observation of the CGSLB
in 2011.
    As mentioned, the ad hoc statutory intervention suspending the indexation mechanism
(until workers had lost 2 percent of their purchasing power) has been challenged
unsuccessfully at the Constitutional Court38. It ruled that the objective to safeguard
“compétitivité” and to decrease state expenses is legitimate and proportionate. The Court stated
that the restriction was limited in time and only related to wages. This observation clearly
fails to see that wage setting is at the heart of collective autonomy and that a “saut d’index”
will never be recuperated.
    The governmental intervention of 2013 to prohibit any genuine wage increase (“marge
maximale pour l’évolution du coût salarial” is 0 percent) has unsuccessfully been attacked at the
Conseil d’Etat39.


7. Conclusions.

   This state of play clearly indicates that international standards on freedom of collective
bargaining have not been sufficiently understood at national level and that supervisory bodies
at European and international level have failed to live up to the standards they have been

37 For further information please visit the International Labour Organization at the following link::
https://www.ilo.org/dyn/normlex/en/f?p=1000:50002:0::NO:50002:P50002_COMPLAINT_TEXT_ID:29
00951
38 Cour constitutionnelle, 13 October 2016, 130/2016.
39 Conseil d’état, 27 September 2013, nr 224.863.



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Filip Dorssemont                                                                 Italian Labour Law e-Journal
                                                                                        Issue 2, Vol. 12 (2019)
                                                                                               Section: Theme


setting themselves in monitoring the Belgian case. If collective autonomy is not able to ensure
a fair share due to legislative frameworks at odds with international and European human
rights standards and if these violations cannot be successfully challenged in judicial and quasi-
judicial procedures, there is a risk that conditions are created for recourse to less peaceful
collective actions. Where did I recently hear, that the best way to prevent violence, is the
promotion of social justice?




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Copyright © 2019 Dorssemont Filip. This article is released under a Creative Commons
Attribution 4.0 International License.




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